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There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022471134 THE irp» ^^^»92T1" University Library KD 1650.C43 1894 ^'''iiSiiiLiSli.aHS?* *"' 1893 :lncluding t 3 1924 022 471 134 SALE OP GOODS ACT, 1893, INCLUDING THE FACTORS ACTS, 1889 & 1890. .^ ^'. ey HIS HONOUR JUDGE CHALMEES (draftsman of the act). SECOND EDITION, BEVISED. LONDON: WILLIAM CLOWES AND SONS, Limited 27, FLEET STREET. 1894. LONDON : rBINTES BY WILLIAM CLOWES AND BOSS, LIUIIED, STAUFOBS STBEST AND CBABISG CBOSS, INTEODUCTION. It is difficult to know whether to call this little book a first edition or a second edition. It is a first edition of the Sale of Goods Act, 1893, but it is a reproduction of my book on the Sale of Goods, published in 1890, which was in substance a commentary on the Sale of Goods Bill. The clauses of the Bill, with a few verbal alterations, formed the large type propositions of the book. But though the language of the propositions remains the same, its effect is now very different. Those propositions were only law in so far as thej' were correct and logical inductions from the decided cases. Now the position is reversed. The propositions have become sections in the Act, and the decided cases are only law in so far as they are correct and logical deductions from the language of the Act. Each case, therefore, must be tested with reference to the Act itself. But it may be none the less useful to the reader to call his attention to the decisions which formed the basis of the various sections, and which were intended to be reproduced in the Act. In so far as the law is unaltered, they are still in point as illustrations. The history of the Act is as follows : The Bill was originally drafted by me in 1888. I then settled it in consultation with Lord Herschell, who kindly consented a 2 iv INTEODUGTION. to take charge of it. In 1889, Lord Herschell introduced it in the House of Lords, not to press it on, but to get criticisms on it. In 1890 there was no opportunity of proceeding with it, but in 1891 the Bill was again introduced in the Lords, and referred to a Select Com- mittee. It had in the mean time been criticised by Lord Bramwell, Mr. Walter Ker, and other friends, and the BarOommittee had submitted a valuable memorandum on it. In the Lords it was carefully considered by a Select Committee, consisting of Lords Herschell, Hals- bury, Bramwell, and Watson. A question arose as to its extension to Scotland, so the Bill stood over till 1892. It was then again introduced in the Lords, and extended to Scotland, on the advice of Lord Watson, who had consulted various Scotch legal authorities. Professor Eichard Brown and Mr. Spens of Glasgow took an infinity of pains to suggest the necessary amendments. In 1893 the Bill was again passed through the Lords in the form in which it was settled in 1892. It was then considered by a Select Committee of the House of Commons and further amended. The Committee con- sisted of Sir Charles Eussell, A.G-., Sir E. Webster, Q.C., Mr. Asher, Q.C. (the Scotch Solicitor-General), Mr. Shiress Will, Q.C., Mr. Bousfield, Q.C., Mr. Ambrose, Q.C,, and Mr. Mather. Some of the amendments intro- duced by the Commons were modified on its return to the Lords, and it was finally settled in its present form. The Bill, in its original form, was drafted on the same lines as the Bills of Exchange Bill. On Lord Herschell's advice, it endeavoured to reproduce as exactly as possible the existing law, leaving any amendments that might seem desirable to be introduced in Committee on the authority of the Legislature. So far as England is INTRODUCTION. v concerned, the conscious changes effected in the law have been very slight They are pointed out in the notes to the various sections. As regards Scotland, in some cases the Scottish rule has been saved or enacted for Scotland, in others it has been modified, while in others the English rule has been adopted. These points are noted under the sections as they arise. Scotch law differs from English law mainly by adhering to the Roman law in matters where English law has developed a rule of its own. The Mercantile Law Commission of 1855 reported on this question, and recommended that on certain points the Scotch rule should be adopted in England, while on other points the English rule should be adopted in Scotland. The recommendations of the Commission were partially embodied in the English and Scotch Mercantile Law Amendment Acts of 1856. The result was curious. Either by accident or design certain rules were enacted for England which resembled, but did not reproduce, the Scotch law, while other rules were enacted for Scotland which resembled, but did not reproduce, the English law. The present Act has carried the process of assimilation somew]}at further. It is perhaps to be regretted that the process has not been completed; but future legislation may accomplish that. It is always easier to amend an Act than to alter common law. Legislation, too, is cheaper than litigation. More- over, in mercantile matters, the certainty of the rule is often of more importance than the substance of the rule. If the parties know beforehand what their legal position is, they can provide for their particular wants by express stipulation. Sale is a consensual contract, and the Act does not seek to prevent the parties from making any bargain they please. Its object is to lay down clear vi INTRODUCTION. rules for the cases where the parties have either formed no intention, or failed to express it. As regards this edition, I have not attempted to expound or criticise the mass of cases which illustrate or are modified by the Act. Such a work could hardly be undertaken with any prospect of success until the Act has been for some time in operation. I have only sought to indicate the sources of the various provisions in the Act, and to elucidate the general principles of the law of sale by citations from eminent jiidges. Our common law is rich in the exposition of principles, and these expositions lose none of their value now that the law is codified. A rule can never be appreciated apart from the reasons on which it is founded. I have compared the main propositions of the English law with the corresponding provisions of the Code Napoleon, which is the model on which most of the Continental Codes have been framed. On the one hand, the scope and efiect of a principle are often best brought out by .contrast ; on the other hand, where any rule of municipal law is found to be generally adopted in other countries, there is a strong presumption that the rule is founded on broad grounds of expediency, and that its application should not be narrowed. The Koman lawyers were justified in attaching a peculiar value to those rules of law which were jwris gentium. I have also made frequent reference to Pothier's Traite du Oontrat de Vente. Although published more than a century ago — for Pothier died in 1772 — it is still, probably, the best reasoned treatise on the Law of Sale that has seen the light of day. " The authority of Pothier," says Best, C. J., " is as high as can be had next to the decision of a court INTBOBVCTION. vii of justice in this country."^ This statement must obviously be taken with the qualification that it only holds good when Pothier is discussing some principle of general application; for the law he was particularly dealing with was French law, as modified by the custom of Orleans, before the Code Napoleon. The references to the Civil Law need little comment. It is the foundation of the Scottish law, and it is an inexhaustible store of legal principles. There is hardly a judgment of importance on the law of sale in which reference is not made to the Civil Law. " The Eoman law," says Tindal, C. J., " forms no rule binding in itself on the subjects of these realms ; but in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived, if it prove to be supported by that law — the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries of Europe." ^ My task of reference in this edition has been much facilitated by Dr. Moyle's excellent monograph on the Contract of Sale in the Civil Law. To facilitate reference to contemporaneous reports, the date of each case cited has been given. To the list of cases cited I have added a table of cases overruled, doubted, or explained by subsequent decisions. This table has no pretension to completeness, but it may be useful as far as it goes. M. D. Chalmers. Birmingham, 1894. ' Gox V. Trmi (1822), 5 B. & Aid. 481 ; of. M'Lean v. Clydesdale Sank (1883), 9 App. Cas., at p. 105, per Lord Blackburn. « Acton V. Blundell (1843), 12 M. & W., at p. 324. CONTENTS. Introduction .... Table of Cases Cited . Table op Cases Overruled, &c. PAET I, Formation op the Contract. Contract of Sale. SECT. 1. Sale and agreement to sell .... Capacity of Parties. 2. Capacity to buy and sell . PAGE iii XV XXV Formalities of the Contract. 3. Contract of sale, how made 11 4. Contract of sale for £10 and upwards .... 12 Subject-Matter of Contract. 5. Existing or future goods 14 6. Goods which have perished 17 7. Goods perishing before sale, but after agreement to sell . 18 The Price. 8. Ascertainment of price 18 9. Agreement to sell at valuation 20 Conditions and Warranties. 10. Stipulations as to time 20 11. When condition to be treated as warranty . ... 23 X CONTENTS. SECT. ^"^^ 12. Implied undertaking as to title 25 13. Sale by description 27 1^. .'Sinla oi caveat emptor. Implied conditions as to quality or fitness 28 15. Sale by sample ... 32 PAET II. Effects of the Contract. Transfer of Property as between Seller and Buyer. 16. Goods must be ascertained 36 17. Property passes when intended to pass . . . . 37 18. Rules for ascertaining intention 38 19. Eeservation of right of disposal 44 20. Risk ^rimd/aae passes with property . • . . 46 Transfer of Title. 21. Sale by person not the owner 48 22. Market overt 51 23. Sale under voidable title 52 24. Revesting of property in stolen goods on conviction of , offender 53 25. (1) Disposition by seller remaining in possession . . 54 (2) Disposition by buyer obtaining possession ... 55 26. Effect of writs of execution . • 55 PAET III. Performance of the Contract. 27. Duties of seller and buyer .... 28. Payment and delivery as concurrent conditions 29. Rules as to delivery 30. Delivery of wrong quantity 31. Instalment deliveries 32. Delivery to carrier ..... 33. Risk where goods are delivered at distant place 34. Buyer's right of examining the goods 57 58 59 62 63 64 66 66 CONTENTS. XI SECT. PAGE 35. Acceptance 67 36. Buyer not bound to return rejected goods .... 69 37. Liability of buyer for neglecting or refusing delivery of goods 69 PART IV. Rights of Unpaid Seller against the Goods. 38. Unpaid seller defined 70 39. Unpaid seller's rights 71 40. Attachment by seller in Scotland 73 Unpaid Seller's Lien. 41. Seller's lien 74 42. Part delivery 75 43. Termination of lien ... • ... 76 Stoppage in transitu. 44. Eight of stoppage in transitu 78 45. Duration of transit 81 46. How stoppage in transitu is effected 84 Re-sale hy Buyer or Seller. 47. Effect of sub-sale or pledge by buyer .... 85 48. Sale not generally rescinded by lien or stoppage in transitu 88 PAET V. Actions foe Bkeach of the Conteact. Remedies of the Seller. 49. Action for price 90 50. Damages for non-acceptance 92 Remedies of the Buyer. 51. Damages for non-delivery 93 52. Specific performance . . 97 53. Kemedy for breach of warranty 98 54. Interest and special damages 100 CONTENTS. PAET VI. Supplementary. SECT. PAGE 55. Exclusion of implied terms and conditions . . . 103 56. Reasonable time a question of fact 104 57. Eights enforceable by action 105 58. Auction sales 105 59. Payment into Court in Scotland when breach of warranty alleged 107 60. Repeals 107 61. Savings 108 62. Interpretation of terms 109 63. Commencement . . 116 64. Short title 116 Schedule (of repeals) 117 THE FACTORS ACT, 1889 (52 & 53 Vict. c. 45) Preliminary (Definitions) Dispositions by mercantile agents . Dispositions by sellers and buyers of goods Supplemental Schedule of repeals .... THE FACTORS (SCOTLAND) ACT, 1890 (53 & 54 Vict, c.40) 118 119 123 128 131 134 135 APPENDIX I.— Statutes. 2 & 3 Phil. & Mar. c. 7 (Sale of Horses) .... 31 Eliz. c. 12 (Sale of Horses) 29 Car. 2, c. 3, ss. 4, 17 (Statute of Frauds) . 9 Geo. 4, c. 14, s. 7 (Lord Tenterden's Act) . 18 & 19 Vict. c. Ill (Bills of Lading Act, 1855) . 24 & 25 Vict. c. 96, s. 100 (Larceny Act, 1861) 30 & 31 Vict. c. 48 (Sale of Land by Auction Act, 1867) 41 & 42 Vict. c. 31, s. 4 (Bills of Sale Act, 1878) . 50 & 51 Vict. c. 28, s. 17 (Merchandise Marks Act, 1887) 54 & 55 Vict. c. 39, in part (Stamp Act, 1891) 186 139 142 148 149 152 153 155 157 157 CONTENTS. xiii APPENDIX II.— Notes. ■PAOE Note A. On the use of the terms "Contract," "Condition," and " "Warranty " 162 Note B. Construction of contracts of sale and list of terms and stipulations judicially construed .... 174 Note C. Delivery to carrier — judgments of Lords Cottenham and Blackburn ISO TABLE OF CASES CITED. A. Acebal v. Levy Acraman v. Morrice . Aitkinson v. Maling . Alderson v. Maddison Aldridge v. Johnson Alewyn v. Pryor . Alexander v. Gardner V. Vanderzee PAGE 18 . 39 . H . 164 4, 36, 40 . 175 41, 64, 90, 175, 176 175 Allan V. Stein ..'... 73 Allen V. Cameron .... 98 V. Pink 22 Ancona v. Eogera ... 60, 156 Anderson v. Morioe . 39, 46, 178 Andrews v. Belfleld . . . 178 Anglo-Egyptian Navigation Co. 0. Eennie .... 4 Angus V. MoLaohlan ... 78 Anthony v. Halstead . . . 179 Appleby v. Myers .... 18 Argentina, The .... 151 Ashforth v. Redford ... 177 Atkinson v. Bell .... 41 Aze'mar v. Casella . . 27, 28, 179 B. Bagueley v. Hawley . 15, 57 Bailey v. Sweeting . . . 146 Baines v. Swainson . . . 124 Baker v. Firminger ... 59 Baldey v. Parker . . 78, 144 Bankart v. Bowers ... 58 Banner, Exp '. 45 Bannerman v. White 22, 24, 98, 173 Barber v. Meyerstein . . . 151 PAGE ... 100 ... 171 ... 9 . . 51, 52 17, 28, 30, 39 ... 81 . 92, 94, 95 Bartholomew v. Markwiok . 91 Barker v. Furlong Barnard v. Faber Barnes v. Toye Barnett, Ex p. . Barr v. Gibson Barrow, Ex p. . V. Arnaud Bartlett v. Holmes Bastin v. Bidwell . Batohelor v. Vyse . Beaumont v. Brengeri V. Greathed . 57, 176 167 . 49 41,141 . 91 6 29,66 Beckett v. Tower Assets Co. Beer v. Walker Behn v. Burness 23, 24, 98, 115, 173 Bentley v. Vilmont ... 53 Bergheim v. Blaenavon Iron Co 93 Berndtson v. Strang . . 79, 82 Bethell v. Clark . 79, 80, 81, 84 Beverley v. Lincoln Gas Co. 12, 40 Bexwell v. Christie Bianohi v. Nash . Biddlecombe v. Bond Bigge V. Parkinson Bird V. Brown . Birkmyr v. Darnell Bishop V. Shillito . Blandford, ^a; ^. . Bloxam v. Morley . V. Sanders . . 105 2 . 116 30, 32, 104 82 . 142 . 2,20 . 156 . 74 58, 69, 72, 74 Bolton V. Lancashire & York- shire Eailway Co. 72, 77, 79, 81 82,83 Bonzi V. Stewart .... 127 Boone v. Byre 167 Borrowman v. Drayton . 27, 178 TABLE OF CASES CITED. PAGE Boswell V. Kilborn . . 39, 40 Boulton V. Jones . . . 12 Bourne v. Seymour . . . 178 Bowes V. Shand . . 21, 27, 175 Brady v. Oastler .... 95 Brandt v. Bowlby .... 44 V. Laurence . . 23, 175 Bridge v. Wain .... 100 Bright, Ex p. . Brinsmead v. Harrison Bristol Bank Eailway . Brogden v. Metropolitan Rail way Co. . Brown v. Byrne V. Hare V. MuUer Midland Bryans a Nix . Buokman v. Levi . Budd V. Fairmaner Buddie V. Green . Bull V. Parker . . V. Kobinson . Bunney v. Poyntz . Burdick v. Sewell . Busk V. Davis . Bussey v. Barnett . 149 11 12 177 . 92, 93 ; 41, 64 . 65, 66 22, 28, 179 15, 57, 60 4 66 71,74 . 113 40 58 Calcutta Co. v. De Mattes 38, 41, 57, 64, 91, 103, 176, 182 Cammell v. Sewell ... 50 Campbell v. Mersey Docks Co. 36, 40 Carnforth Co., Mx p. Carter v. Crick Case of Market Overt Cassaboglou v. Gibb . Castle V. Playford . . ■». Sworder. Caswell V. Coare . Caton«. Caton. . Chalmers, Ex p. 70, 73, Chandelor v. Lopns . Chanter v. Dickinson . 116 32, 179 . 51 71,72 . 46 67, 144 . 69 . 146 75, 76, 79 . 22 . 160 Chanter v. Hopkins Chaplin v. Rogers . Chapman v. Morton V. Speller V. Withers Cbesterman v. Lamb Chinery v. Viall . City Bank v. Barrow Clarke v. Hutchins V. Spenoe . V. Westrope Clayton v. Burtenshaw Clifford V. Watts Close, Ex p. Clough D. London & Western Ky. Co. . . . 52 Cochrane v. Moore . . 4, 7, 37 Cockerell v. Aucompte . 63, 178 Coddington v. Paleologo 174, 177 Cole V. North Western Bank 50, 120, 123, 124, 125, 126, 130, 132 Collins, Ex p. Ee Lees . . 168 Collyer v, Isaacs .... 16 Colonial Bank v. Whinney 48, 50, 112 Colonial Insurance Co. of New Zealand v. Adelaide Marine Insurance Co. . . 62, 64, 178 Congreve v. Evetts . . 16, 110 PAGE 12, 28, 29, 115, 172 . . 144 . . 68 . . 15 . 100,179 . . 69 . 58, 96 . 50, 120 . . 65 . . 42 . . 20 160 . . 17 . . 121 North Cooke V. Bshelby . Cooper, Exp. . ■B.Bill . . V. Shepherd V. Willomatt . 132 76,83 . 77 8 48,97 . 9,12 . 92 Cornish v. Abington . Cort V. Ambergate Ey. Co. Cory V. Thames Ironworks Co. 94, 96 Couston V. Chapman . 24, 35, 68, 98, 105 Couturier v. Hastie ... 17 Covas V. Bingham . . . 178 Coventry v. Gladstone . 81, 87 1). Great Eastern Eailway Co 9 Cowasjee v. Thompson . 122, 177 Cox V. Todd 176 TABLE OF OASES CITED. xvii PAGE Crane v. London Dock Co. . 51 Cranston v. Marshall . . . 170 Craven v. Eyder .... 85 Orawoour, Exp 2 Cross V. Eglin 178 Cundy v. Lindsay . . 48, 52, 53 Cunliffe v. Harrison . . 62, 63 Cunningham, Be ... . 121 Cusack V. Kobinaon . 74, 78, 144 Cuthbert v. Cumming . . 178 Cutter V. Powell 58, 115, 167, 170 Davis V. Hedges Dawson v. Collis . Derry v. Peek . Devaux v. Conolly Dixon V. Baldwen. V. Fletcher V. Yates 36, 37, . 99 . 98 115, 116 . 102 . 82 . 62 39, 76, 85 77,78 . 81 . 49 . 113 8 Dodsley v. Varley . Dodson V. Wentworth . Doe V. Donston Donald v. Suckling . Drake, Exp. . . . Drummond v. Van Ingen 29, 33, 104 Duke of St. Albans v. Shore 167 Duncan v. Topham . . . 176 Duncomhe v. Brighton Club . 91 Dunkirk Colliery Co. v. Lever 92,93 Danlop V. Grote .... 90 V. Higgins .... 95 V. Lambert . . 64, 180 Dutton V. Solomonson . 41, 64 E. 8 144 145 25 Eberle v. Jonas .... Edan v. Dudfleld .... Egerton ». Mathews . . . Eichholz V. Bannister . . Elbinger Action Gesellschafft V. Armstrong ... 96, 100 Ellen V. Topp 23 Ellis I). Hunt 60 V. Thompson .... 59 Elmore v. Kingsoote V. Stone Elphick V. Barnes. Emanuel «. Dane . Emmerson v. Heelis PAGE . . 145 . 60, 144 18, 40, 46 . . 4 . . 105 Emmerton v. Matthews . . 32 Pairmaner v. Budd Falk, Exp.. . . Parebrother i). Simmons Farina v. Home . Farmeloe v. Bain . Feise v. Wray . Fesaard v. Mugnier Field V. Lelean Fisohel v. Scott Ford V. Yates . Forsyth v. Jervis . Fragano v. Long . France v. Gaudet . Francis, Ex p. . Franklin v. Neate Freeman v. Appleyard V. Cooke 4 84,87 146 60 85 70 91 12, 59, 75, 176 Freeth v. Burr. Fuentes v. Montis Furley v. Bates 175 59 4 41,46 97 81 113 112 48 64 118, 124, 133 . 38, 39, 42 Gabarron v. Kreeft . 44 Gapp V. Bond 157 Gardiner v. Gray .... 33 Gardner v. Grout .... 145 Gattorno v. Adams . . . 175 Gibbes, ^a;j) 81 Gibson v. Carruthers . . 72, 79 1). Holland . . 145 Gillard v. Brittan . . .97 Gilmour v. Supple ... 39 Glyn, Mills & Co. v. East and West India Docks . . . 151 Godts V. Rose . . 40, 44, 60, 176 Godwin v. Francis 110, 145, 146 Golding, Davis & Co., Ex p. 85, 87 b XVlll TABL£J OF GASES CITED. PAQB Goldshede v. Cottrell ... 70 GJompertz v. Denton ... 98 Gordon v. Swan .... 91 Gore V. Gibson .... 10 Gorrisaen v. Perrin . . 175, 177 Gtoss V. Lord Nugent ... 147 Graham v. Musson ... 14 Grantham v. Hawley ... 16 Graves*. Legg . 23,24,92,175 Greaves v. Ashlin ... 69, 88 ... 41 GrAert-Borgnis v. Nugent 93, 96, 101 Green v. Baverstook . . 105, 177 Gregg V. Wells .... 48 Grice v. Kiohardson ... 74 Griffiths V. Perrv 70, 73, 74, 75, 77, , 78, 79 Grigg v. National Guardian Assurance Co 157 Grimoldby v. "WeUs . . 34, 69 Grissell v. Bristowe ... 6 Gunn V. Bolokow, Vaughan &Oo 70,71,74,121 Gurney v. Behrend . . . 151 Gwillim V. Daniell ... 178 Hadley v. Baxendale ... 94 Hale V. Bawson . 15, 24, 174, 176 Hallas V. Bobinson ... 16 Halliday v. Holgate . . . 113 Hammond v. Bussey 93, 94, 99, 101 Hanson v. Armitage V. Meyer . Hardman v. Booth Hargreave v. Spink Harman v. Beeve Harnor v. Groves . Harris v, Niokerson Harrison ti. Luke . Hart D.Mills . . Harvey, Exp. . Hastings v. Pearson Hatfield v. Phillips . . 65, 145 ... 39 . . 52, 130 ... 51 4, 13, 143, 144 . 22, 33, 68 . 106 4 . 62 3 . 120 . 125 PACK Hathering v. Laing . . . 122 Hawes v. Watson .... 77 Hayman v. Flewker . . . 120 Eaynes v. Haynes . . 162, 164 Head v. TattersaU 6,42, 46, 68,179 Heilbutt V. Hiokson 2, 22, 24, 33, 34, 36, 39, 40, 67, 68, 98, 99, 171 Helby v. Matthews ... 130 Hellings v. Eussell . . 69, 120 Heywood'a Case .... 43 Heyworth v. Hutchinson 33, 34, 115, 174, 179 Hibblewhite v. M'Morine . 14 Hickman v. Haynes . . 95, 147 Higgons V. Burton 52 Hilbery v. Hatton . . . . 97 Hill V. Perrott . . . . . 8 ■». Smith . . . . . 33 Hinoholiffe v. Barwiok . . 179 Hinds e. Liddell . . . 93, 95 . . 145 North Hiort V. London and Western By. Co. . . . 96 Hoadly v. M'Laine . . 18, 145 Hoare v. Beunie . . . . 64 Hodgson V. Loy . . . . 70 Holdsworth v. Glasgow Bank 100 HoUins V. Fowler . . . 48, 96 Holroyd v. Marshall . . . 16 Holyday v. Morgan . . . 179 Honck V. MuUer 57, 64, 103, 174 Hope V. Hayley . . . . 16 Hopkins v. Hitchcock. . . 28 . 22, 173 Horsfall v. Thomas . . . 28 Horwood V. Smith . . . 52, 53 Houlditch V. Desanges . . 77 Howard r. Castle . . . . 106 Howe D.Smith. . . . 19, 145 Howell V. Coupland . . . 18 Howes V. Ball . . . . 113 Hubbard, Hx p. . . . .113 Hugill V. Masker . . . 130,144 Humble v. Mitchell . . . 112 Hunt V. HecUt . . . . 67 Hutton V. Lippert . . 3 V. Warren . . . . 175 TABLE OF CASES CITED. Hydraulic Engineering Co. v. MoHaffie . . .96, 101, 177 Imperial Bank v. London & St. Katharine Dock Co. . . 71 Ireland v. Livingston . 70, 178 Isherwood v. Whitmore . . 67 Jackson v. Allaway ... 59 James v. Griffin ... 82, 83 Jay V. Eobinson .... 10 Jenkyns v. Brown . . .113 V. Usborne . . 71, 129 Jenner v. Smith ... 36, 40 Jewan v. "Whitworth . . . 126 Johnson v. Credit Lyonnais Co. 98, 127, 128, 133 V. Bodgson . . . 146 v. Lancashire & York- shire Ry. Co 97 V. Macdonald . . 7, 175 -— V. Eaylton ... 30, 179 V. Stear .... 96 Johnstone v. Marks ... 9 Jonassohn v. Young ... 64 Jones, Be 42 V. Bowden V. Bright . V. Gibbons V. Gordon V. Just V. Padgett V. Victoria Dock Co. Joseph V. Lyons . . . 29 . 29,31,172 . 61, 93, 176 . . . 115 28, 29, 31, 99 . . . 29 145 16 Joaling V. Kingsford ... 27 Joyce V. Swann . 19, 39, 41, 44 E. Kaltenbaoh v. Lewis . . 126, 132 V. Mackenzie . 49 Kemp V. Falk 72, 75, 76, 81, 83, 84, 85, 86, 87, 88, 122 Kendal v. Marshall, Stevens & Co 72, 80, 81, 82 Kennedy v. Panama Mail Co. 12 23, 27, 31, 115 Kiddell v. Burnard . . . 179 Kilpin V. Eatley . . . 4 Kingdom v. Cox . . . . 63 Kingsford v. Merry . . 52, 130 Kingston v. Preston . . . 168 Knights V. Wlffen . 48, 78, 86 Kreuger v. Blanck . 178 Kymer v. Suweroropp . . 90 L. Laidler v. Burlinson . 39, 41 Laird v. Pirn . . . 92 Lamb v. Attenborougl 1 . . 120 Lambton, Ex p. . 42, 70, 74 Lamond v. Davall . 6, 68, 89, 93 Lancashire Wagon Co. V. Pitz- hugh .... . . 97 La Neuville v. Nourse . . 4 Lang V. Smith . . . 112 Langton v. Higgins 16, 17, 40, 48 Lavery v. Pursell . 89,96,112 Leake v. Driffield . . . 10 Leask v. Scott . . . 86, 87 Leather Cloth Co. v. Hiero- nimus . . . . . . 147 Lee V. Bayes . . . . 48, 51 V. Butler . . . . . 130 V. Gaskell . . . . 112 • V. Griffin . . . . 3,4 Lees, Be Ex p. Collins . . 168 Leeming v. Snaith . . . 178 Leigh V. Paterson . . . . 93 Leith's Estate, Be. . . 78, 104 Leroux v. Brown . . . 144 Levy V. Green . . . . . (J2 V. Langridge . . . . 23 Lewis V. Clifton . . 93 Lickbarrow v. Mason t )1, 79, 86,87, 88, 151 Litt V. Cowley . . . 84, 85 Loekett v. Nioklin . 11, 59 Loder v. KekuM . .. . . 99 6 2 TABLE OF CASES CITED. London & North 'Westem Ey. Co. V. Bartlett .... 81 Lord V. Price .... 88, 89 Lorymer v. Smith ... 33, 67 Lucas V. Bristow .... 179 V. Dixon .... 144, 145 Lucy V. Mouflet .... 68 Lunn V. Thornton .... 15 Lyons v. Hoffnung . . 80, 81 Lysney v. Selby .... 171 Maodonald v. Longbottom . 179 Macfarlane «. Taylor . . 33 Maokay v. Dick .... 25 Mackintosh v. Mitohison . . 11 Maclean v. Dunn ... 88, 93 Maonee v. Gorst .... 126 Maddison v. Alderson . . 14, 144 Mainprice v. Westley . . . 105 Manders v. Williams ... 49 Marshall v. Green . . . 112 Martin v. Eeid .... 49 Martindale v. Smith 20, 39, 70, 74, 88 Martineau v. Kitching 19, 46, 47 Marvin v. Wallace . . . 144 M'Bain r. Wallace ... 38 McCoUin V. Gilpin ... 179 McConnell v. Murphy . 63, 178 MoEwan v. Smith 61, 78, 85, 129 McLay v. Perry .... 178 Melrose v. Hastie .... 73 Merchant Banking Co. a Phcenix Bessemer Steel Co 73, 76, 86 Meredith v. Meigh . . 65, 144 Mersey Steel & Iron Co. v. Naylor . . . 29,63,64,69 .Mews V. Carr 147 Meyer v. Bverth .... 33 Mildred v. Maspons ... 128 Miles, JSixp 82, 83 V. Gorton .... 74, 76 Milgate v. Kebble 60, 88, 97, 113 Mirabita v. Imperial Ottoman Bank. . . . 36,41,44,45 Missouri Steamship Co., Mody V. Gregson 27, 30, Mondell v. Steel . . Monk V. Whittenbury Moore v. Campbell Moran v. Pitt . . . Morgan v. Bain V. Gath . Moriaon v. Gray . . Morley «. Attenborougb Morris v. Leyison . Morritt, Be. . . . Mortimer v. Bell . Morton v. Lamb . V. Tibbet . . Moss V. Sweet . Moyce v. KTewington . Mullinger v. Florence Murray v. Mann . pAGB Be . 151 33,34,104 . 99 . 123 63, 178 51, 136 75, 147 62 70 26,30 178 113 106 58 25 40 51,53 113 98 N. Navulshaw v. Brownrigg. 124 Neill V. Whitworth . . 176, 177 New V. Swain "74 Newell V. Eadford. . . 145, 146 Nichol V. Godts ... 27, 35 Nicholson v. Bower . . . 145, V. Bradfleld Union 62 Noble V. Ward 147 Norman v. Phillips . . 65, 145 North Central Wagon Co. v. Manchester Eailway . . 156 Ogg V. Shuter . . Ogle V. Atkinson . V. Earl Vane . Oldfield V. Lowe . Ollivant v. Bayley Orchard v, Simpson Ormrod v. Huth . Oxendale v. Wetherell 37,44 . 41 95, 147 42 29 177 28 62 TABLE OF CASES CITED. P. Page V. Cowasjee . . 49, 88 V. Morgan . 13, 14, 68, 144 Palliser «. Guruey. . . . 10 Parana, The . . . . . 96 Parfltt J). Jepson . . . 106 Parker v. Palmer . 33, 34, 68 V. Wallis . . . 144 Parkinson v. Lee . . . . 33 Parsons v. Sexton . . . 98 Parton v. Crofts . . . 147 Pasley v. Freeman 22, 23, 171 Paul V. Dod . . . . . 91 Payne v. Cave . . . . . lOo Paynter v. James . . . 58, 176 Pearson, Ex p. . . 65 . . 85 . . 52 Pease v. Grloahec . Pelton V. Harrison . . 10 Peirce v. Corf . . . 145,147 Perkins v. Bell . . 34 Peters v. Fleming . . . 9 Peto V. Blaydes . . . 26 Pettitt V. Mitchell . . 67 Phelps V. Comber . . 79, 84, 87 Phillips ». Huth . . . . 125 Phillpotts V. Evans . . 92 Pickard v. Sears . . . . 48 Pickford v. Grand J unction Railway . . . . . 58 Pigot V. Oubley . . . 49 Playford v. Mercer . 26, 177 Plevins v. Downing . . 147 Popplewell, Ex p. . 168 Portalis v. Tetley . . 124 Poulton V. Lattimore . . 99 Powell V. Horton . , . .179 Power V. Barham . . " . 22,179 s. Baffles V. Wiohelhaus . . 12 Bamsden v. Gray .... 93 Bandall v. Newson . 27, 29, 32, 34,99 PAGE Bandall v. Eoper .... 99 Bankin v. Potter .... 43 Baphael v. Bank of England 124 Bawson v. Johnson ... 58 Bay V. Barker 40 Beeves v. Barlow .... 2 V. Whitmore ... 16 Beg. V. Justices of Central Crim. Court 152 Bein v. Lane 160 Beuss V. Pioksley ... 14, 146 Beuter v. Sala . . 21, 63, 175, 178 Eigge V. Burbidge ... 99 Boberts, In re 156 Bobinson v. Mollett ... 104 Bodger v. The Comptoir d'Es- compte 86 Boe V. Tranmar .... 104 Bohde V. Thwaites . . 2, 36, 40 Ehodes, iJe 9,10 Boots V. Lord Dormer . . 105 Eoper V. Johnson . . 92, 93, 95 Boscorla v. Thomas ... 22 Bosevear Clay Co., Ex p. 81, 82 Bourke v. Short .... 19 Bugg V. Minett ... 39, 46 Byder v. Wombwell ... 9 S. Salter v. Woollams . . 57, 60 Sanders v. Jameson ... 68 V. Maclean 26, 61, 110, 119, 150, 151, 176 Saunders v. Topp .... 67 Scattergood v. Sylvester . . 53 Sohotsmans v. Lancashire and Yorkshire Ey. Co. 45, 72, 77, 80 81, 82, 84, 88 Sootson V. Pegg .... 2 Scott V. Eastern Counties By. 145, 148 V. England .... 90 Scrivener v. Great Northern Eailway 77 Seath V. Moore . 37, 38, 39, 42 XXll TABLE OF CASES QITED. PAGE Stone V. Lafone .... 48 SeweU V. Burdick . . 87, 113, 149 Shardlow v. Ootterell . . . 145 Sharman v. Brandt . . . 146 Shaw V. Holland .... 94 Sheldon ». Cox .... 4 Shepherd ». Harrison. . 37,45 V. Kain .... 178 Shipton v. Casson .... 62 Sievewright v. Archibald . 147 Simmons o. Swift ... 89, 46 Simpson v. Crippin . . 28, 64 Sims V. Marryat .... 25 Smeed v. Poord ... 93, 96 Smith V. Baker .... 82 ■!). Blandy ... 177 ■». Chance .... 60 V. Green ... 99 V. Hudson . . . 144, 145 V. Hughes .... 12 V. Jeffryes .... 179 ». Lascelles ... 66 V. Mercer .... 177 V. Myers ... 17, 176 Snee «. Prescot .... 84 Snowball, Exp 124 Somes V. British Empire Ship- ping Co 75 Soper V. Arnold .... 19 Souter II. Drake .... 26 South Australian Insurance Co. ■». Eandell .... 3,4 Spalding t>. Ending ... 87 Spartali v. Benecke . 59, 75, 176 Spioer v. Cooper .... 177 Stapleton, Exp. 70, 75, 88, 89, 92, 93 Startup V. Cortazzi ... 95 V. Macdonald 60, 61, 67, 176 Staunton v. Wood .... 176 Steamship ' County of Lancas- ter ' V. Sharp .... 177 Stewart v. Kennedy ... 98 Stock V. Inglis 177 Stoveld V. Hughes ... 85 Street «. Blay .... 98, 172 Stucley V. Baily ... 22, 173 Swain v. Shepherd . . 39 4.2 FAOB Sweeting v. Turner . 39, 46, 48 Syers ». Jonas 12, 30,32, 33, 84, 98 T. Tailby v. OflScial Receiver , Tanored v. Steel Co. of Soot- land . . . Tansley v. Turner TarUng v. Baxter Taylor v. Bullen ■». Kymer V. Smith 16 178 39,46 178 127 14, 144, 145 48 95 20 147 150 Telegrafo, The . Thol V. Henderson Thomas v. Predricks Thompson v. Gardiner ' V. Dominy . Thornett v. Haines 105, 106, 177 Thornton v. Kempster . 145 Thurnell v. Balbiruie . . 20 Tigress, The ... 84, 85 Toulmin v. Hedley ... 67 Townley v. Crump . . 74 TregeUes v. Sewell ... 41 Tremoille v. Christie . . . 120 Tucker v. Humphrey . . 70, 73 Turner v. Liverpool Dooks . 44 Tyers v. Rosedale Co. . 95, 147 T7. Union Bank v. Munster . . 106 V. Vagliano v. Bank of England 117 Valpy «. Gibson 18, 19, 78, 81, 82 V. Oakeley . . 74, 75, 95 Van Casteel v. Booker . 44 70 Vandenbergh v. Spooner . . 145 Vickers v. Hertz . . . 124, 133 «. Vickers .... 20 Vilmont o. Bentley . 51, 52, 53 Villars, Exp 26 TABLE OF CASES CITED. XXIU W. PAGE Waokerbarth v. Masson . . 177 Wait V. Baker . . 41, 43, 44, 64 Walker v. Matthews V. Mellor . V. Nussey . Walton V. Mascall Ward V. Hobbs Warlow V. Harrison Warrangton v. Furbor Watkins v. Bymill Watson, Exp. . . . In re . Watts V. Friend . . Webb V. Pairmaner . Wentworth v. Outhwaite WestzinthuB, In re Whistler v. Forster . White, Exp., Re Nevill V. Ghirden , . V. Proctor . Whitehead v. Anderson Wieler v. Schilizzi Wigglesworth v. Dallison Wilkinson v. Evans V. King . . 52 3 . 145 . 91 28, 103, 178 105, 107 . 160 12, 175 81,84 3 14,15 . 21 . 88 . 87 . 49 3 . 52 . 146 81,84 , 28 12, 104 . 146 51 Wilks V. Atkinson Williams v. Beynolde V. Wheeler Wilson V. Glossop . Withers v. Eeynolds Wood V. Baxter . V. Eowoliffe . V. Smith . V. Tassell Woodland v. Fuller Woodley v. Coventry Woods V. Bussell . Woolfe V. Home . X. Xenos V. Wickham Y. PACE 58 95 144 11 64 57 120 179 60 56 85 42 23, 57, 177 41 Yates V. Pym . Young V. Matthews Zagury v. Furnell . . . 179 37, 38, 39 39 TABLE OF CASES OVERRULED, &c. Alexander v. Vanderzee (1872), L. E. 7 0. P. 530, distinguished and considered, Bowes v. Shand (1877), 2 App. Gas. 455, Aldridge v. Johnson (1857), 26 L. J. Q. B. 296, distinguished, Jbnneh v. Smith (1869), L. E. 4 C. P. 270, at p. 276. Anderson v. Scott (1806), 1 Camp. 235, dissented from, Saunders v. Topp (1849), 4 Exch. 390, at p. 395. Attwood V. Emery (1856), 26 L. J. C. P. 73, distinguished and doubted, Htdrattlic Co. v. McHapfie (1878), 4 Q. B. D. 670, C. A. Bailey v. Sweeting (1861), 30 L. J. C. P. 150, questioned. Smith V. Hudson (1865), 34 L. J. Ex. 145, at p. 149, followed, Wilkinson v. Evans (1866), L. E. 1 0. P. 407, at p. 411. Baines v. Swainson (1863), 32 L. J. Q. B. 281, explained. Cole v. NoKTH Western Bank (1875), L. R. 10 C. P- 354, at p. 373, Ex. Ch. Bmler V. Meyerstein (1870), L. E. 4 H. L. 317, discussed, Glyh v. East India- Docks (1882), 7 App. Gas. 591, at p. 604. Bentley v. Vilmont (1887), 12 App. Cas'. 471, overridden by sect. 24 of the Act. Berndtson v. Strang (1867), L. E. 4 Eq. 481, varied on appeal (1868), L. E. SCh.App. 588. Bethell v. Clarke (1888), 20 Q. B. D. 613, followed, Lyons v. HoFFNUNG (1890), 15 App. Cas. 391 P. C. Bigge v. Parkinson (1862), 31 L. J. Ex. 301, explained, Mody v. Gbegson (1868), L. E. 4 Ex. 49, at p. 53, Ex. Ch. Bodger v. Nichols (1872), 28 L. T. 441, considered. Ward v. Hobbs (1878), 4 App. Cas. 13, at p. 22. Bolden v. Brogden (1838), 2 M. & Eob. 113, overruled, Kiddbll v. BuRNARD (1842), 9 M. & W. 668, at p. 670. Bonzi V. Stewart (1842), 4 M. & G. 295, overridden by Factors Acts, Cole v. North Western Bank (1875), L. E. 10 C. P. 354, at p. 370, Ex. Ch. xxvi TABLE OF CASES OVERRULED, ETC. Barries v. Hutchinson (1865), 34 L. J. C. P. 169, distinguished, Thol V. Henderson (1881), 8 Q. B. D. 457, discussed and doubted, Grebebt v. Nugent (1885), 15 Q. B. P. 85, at pp. 90, 94, 0. A. Brandt v. Lawrence (1876), 1 Q. B. D. 344, 0. A., explained, Ebuteb V. Sala (1879), 4 C. P. D. 239, at p. 244. Bridge v. Wain (1816), 1 Star. 504, discussed, Elbingeb v. Aem- STRON» (1874), L. E. 9 Q. B. 473, at p. 476. Brown v. Muller (1872), L. E. 7 Ex. 319, discussed. Roper v. Johnson (1873), L. E. 8 0. P. 167, at p. 176. Bryan v. Lewis (1826), E. & M. 386, overruled, Hibblbwhitb v. M'MoRiNB (1839), 5 M. & W. 462, at p. 466. Burdick v. Sew'eU (1884), 13 Q. B. D. 159, C. A., reversed, Sewell v. BuBDiOK (1884), 10 App. Gas. 74. Bushel V. Wheeler (1844), 8 Jur. 532, discussed, Noeman v. Phillips (1845), 14 M. & W. 277, at p. 283 ; and Mobton v. Tibbett . (1850), 15 y. B. 428, at p. 441. Bussey v. Burnett (1842), 9 M. & W. 312, dissented from, Little- child V. Banks (1845), 7 Q. B., at p. 740. Carter v. Toussaint (1822), 5 B. & Aid. 855, questioned. Castle v. SwoRDBE (1861), 6 H. & N. 828, at p. 834. Castle V. Sworder (1860), 29 L. J. Ex. 235, reversed by Exchequer Chamber (1861), 30 L. J. Ex. 310. Coates V. Railton (1827), 6 B. & C. 423, questioned, Kendal v. Marshall (1883), 11 Q. B. D., at p. 366, C. A. Couston V. Chapman (1872), L. E. 2 H. L. Sc. 250, explained, GrRiMOLDBT V. Wblls (1875), L. E. 10 C. P. 393. Coxe V. Harden (1831), 4 East, 211, distinguished, Brandt v. BowLBY (1831), 2 B. & Ad. 932, at p. 939. Danhy v. Tvxiker (1883), 31 W. E. 578, overruled, Cochrane v. Mooeb (1890), 25 Q. B. D. 57, at pp. 64, 76, C. A. Dixon V. Bovill (1856), 3 Macq. H. L. 1 ; see now Factors Act, 1889, s. 1. Dixon V. Tates (1833), 5 B. & Ad. 313, discussed, Kemp v. Palk (1882), 7 App. Cas. 573, at p. 586. Drummond v. Van Ingen (1887), 12 App. Cas. 284, discussed and distinguished, Jones v. Padgett (1890), 24 Q. B. D. 650, at p. 653. Dunlop V. Larribert (1839), 6 CI. & P. 600, discussed, Calcutta Co. V. De Mattos (1863), 32 L. J. Q. B. 322, at p. 328. Elmore v. Stone (1809), 1 Taunt. 458, doubted, Howe v. Palmer (1820), 3 B. & Aid., at p. 324 ; but followed, Marvin v. Wallace (1856), 25 L. J. Q. B., at p. 370. TABLE OF GASES OVERRULED, ETC. xxvii Ex p. Falh (1880), 14 Ch. D. 446, affirmed, but questioned on last point, Kemp v. Falk (1882), 7 App. Cas., at p. 585. Farmeloe v. Bain (1876), 1 0. P. D. 445; see now Factors Act, 1889, s. 9. Fischel v. Scott (1854), 15 C. B. 69, distinguished, Goebissen v. Pbrkin (1857), 27 L. J. C. P. 29. Fletcher v. Heath (1827), 7 B. & 0. 517, overridden by Factors Acts, Cole v. North Western Bank (1875), L. E. 10 C. P. 354, at p. 369, Ex. Ch. Ford V. Tates (1841), 2 M. & Gr. 549, distinguished and explained, LooKETT V. NiCKLiN (1848), 2 Exch. 93, at p. 100. Frost V. Knight (1872), L. K. 7 Ex. Ill, discussed, Kopbr v. Johnson (1873), L. E. 8 0. P. 167, at p. 177 ; and Johnstone v. Millins (1886), 16 Q. B. D. 460, at p. 473, C. A. Ftientes v. Montis (1868), L. E. 3 C. P. 268, and L. E. 4 C. P. 93, Ex. Ch. ; see now Factors Act, 1889, s. 2 (2). Gillard v. Brittan (1841), 8 M. & W. 575, doubted, Johnson v, Lancashire Eailwat (1878), 3 C. P. D. 499, at p. 507. Ex p. Oolding, Davis & Go. (1880), 13 Ch. D. 628, distinguished and considered, Kemp v. Falk (1882), 7 App. Cas., at p. 581. Gumey v. Behrend (1854), 3 El. & B. 622, discussed. Pease v. Gloahac (1866), L. E. 1 P. C. 219, at p. 228. Qmllim v. Daniell (1835), 2 0. M. & E.,61, distinguished, Leeming V. Snaith (1851), 16 Q. B. 275, at p. 277; and Morris v. Levison (1876), 1 C. P. D., at p. 159. Hammond v. Anderson (1803), 1 B. & P. N. E. 69, distinguished. Ex p. Cooper (1879), 11 Oh. D. 68, C. A. Hartley v. Sattley (1814), 3 Camp. 528, overruled, Meredith u. Meigh (1853), 2 E. and B. 354, at p. 370. Hatfeild v. Phillips (1845), 12 CI. & F. 343, overridden by Factors Acts, Cole v. North Western Bank (1875), L. K. 10 C. P. 354, at pp. 367, 370, Ex. Ch. Heilbutt V. Hickson (1875), L. E. 7 C. P. 438, considered, Dbummond V. Van Ingen (1887), 12 App. Gas. 284, at p. 299. Heyworth v. Hutchinson (1862), L. E. 2 Q. B. '447, discussed, Benjamin on Sale, 4th ed., p. 936. Hoare v. Rennie (1859), 29 L. J. Ex. 73, questioned, Simpson u. Cbippin (1872), L. E. 8 Q. B. 14, explained, Mersey Steel Co. v. Natlok (1884), 9 App. Cas. 434, at p. 446. Holroyd v. Marshall (1862), 10 H. L. C. 191, distinguished, Eeevb v. Whitmorb (1864), 33 L. J. Ch. 63, at p. 66. HoTsfall v. Thomas (1862), 31 L. J. Ex. 322, dissented from. Smith V. Hughes (1871), L. E. 6 Q. B., at p. 605. xxviii TABLE OF CASES OVEBBULED, ETC. Howes V. Ball (1827), 7 B. & C. 481, explained, Sewell v. Bukdick (1884), 10 App. Gas. 74, at p. 95. lley V. Frankenstein (1844), 8 Scott. N. E. 839, questioned, Moss V. Sweet (1851), 16 Q. B., at p. 494. Jenhyns v. TJsborne (1844), 7 M. & Grr. 678 ; see now Factors Act, 1889, s. 9. Jeudwine v. Slade (1797), 2 Esp. 572, distinguished. Power v. Babham (1836), 4 Ad. & E. 473. Jewan v. Whitworth (1866), L. R. 2 Eq. 692, explained, Macnee v. GOKST (1867), L. R. 4 Eq. 315, at p. 323. Johnson v. Credit Lyonnais (1877), 3 C. P. D. 32, C. A. ; see now Factors Act, 1889, s. 8. Jones V. Bright (1829), 5 Bing. 533, considered, Dbummond v. Van Ingen (1887), 12 App. Gas. 284, at p. 299. Jones V. Jones (1841), 8 M. & W. 431, distinguished. Ex p. Coopbe (1879), 11 Gh. D. 68, G. A. Jones V. Just (1868), L. R. 3 Q. B. 197, discussed, Drummond v. Van Ingen (1887), 12 App. Gas. 284, at p. 291. Josling v. Kingsford ,QS,&Z), 32 L. J. C. P. 94, discussed, Mody v. Gebgson (1868), L. R. 4 Ex. 49, at p. 56. Kaltenbach v. Lewis (1883), 24 Gh. D. 54, C. A. ; reversed in part by House of Lords (1885), 10 App. Gas. 617. Kingsford v. Merry (1856), 25 L. J. Ex. 166; reversed on appeal, 26 L. J. Ex. 83, Ex. Gh., discussed. Pease v. Gloahao (1866), L. R. 1 P. G. 219, at p. 229; and Golb v. North Western Bank (1875), L. E. 10 G. P. 354, at p. 373, Ex. Gh. Kreuger v. Blanck (1870), L. R. 5 Ex. 179, distinguished and doubted, Ireland v. Livingston (1872), L. E. 5 H. L., at pp. 405, 410. Langridge v. Levy (1837), 2 M. & W. 519, and (1838) 4 M. and W. 337, questioned, Heaven v. Pender (1883), 11 Q. B. D. 503, at p. 511, G. A. Licklarrow v. Mason (1794), 6 East, 21, considered, Sewell v. BuRDicK (1884), 10 App. Gas. 74, at p. 100. Lorymer v. Smith (1822), 1 B. & 0. 1, dictum of Abbott, G.J., disapproved, Hibblewhite v. M'Moeine (1839), 5 M. and W. 462, at p. 466. Lyons v. Barnes (1817), 2 Starkie, 39, overruled, Moss v. Sweet (1851), 16 Q. B., at p. 494. Maddison v. Alderson (1883), 8 App. Gas. 467, discussed, Lucas V. Dixon (1889), 22 Q. B. D. 357, at pp. 360, 363. Marshall v. Green (1875), 1 G. P. D. 35, distinguished. La very v. PuESELL (1888), 39 Gh. D. 508. TABLE OF OASES OVEHBVLED, ETC. xxix McEwan v. Smifh (1849), 2 H. of L. Gas. 309 ; see now Factors Act, 1889, s. 9. M'Oombie v. Davies (1805), 7 East, 5, overridden by Factors Acts, Cole v. North Westeen Bank (1875), L. E. 10 0. P. 354, at p. 364, Ex. Ch. Mertens v. AdcocJc (1803), 4 Esp. 251, overruled, Lamokd v. Davall (1847), 9 Q. B. 1030, at p. 1032. Miles V. Gorton (1834), 2 0. & M. 504, considered, Grice v. EiCHARDSON (1877), 3 App. Gas. 319, at p. 323. Mitchell V. Ede (1840), 11 A. & B. 888, distinguished, Schotsmans V. Lancashire Railway (1867), L. E. 2 Cli. App. 332, at p. 339. Mody V. Oregson (1868), L. E. 4 Ex. 49, discussed, Drdmmond v. Van Ingen (1887), 12 App. Gas. 284. Morley y. Attenborough (1849), 3 Exch. 500, discussed, Sims v. Maheiot (1851), 17 Q. B. 281, at p. 290, and Eicholz v. Bannister (1864), 34 L. J. C. P. 105, at p. 107 ; Benjamin on Sale, 4tli ed., p. 624. Morton y. TiUetts (1850), 15 Q. B. 428, discussed, Page v. Morgan (1885), 15 Q. B. D. 228, at p. 232, and Taylor v. Smith (1893), 2 Q. B. 65, 0. A. Moyce v. Newington (1878), 4 Q. B. D. 32, overruled, Bentley v. ViLMONT (1887), 12 App. Gas. 471. But see now sect. 24. Noble Y. Ward (1867), L. E. 2 Ex. 135, distinguished, Hickman v. Haynes (1875), L. R. 10 C. P. 598, at p. 604. Ogle Y. Earl Vane (1868), L. E. 3 Q. B. 272, distinguished, Hickman V. Haynes (1875), L. E. 10 G. P. 598, at p. 606. Ogg Y. Shuter (1875), L. E. 10 G. P. 159; reversed by Court of Appeal (1875), 1 C. P. D. 47. Page v. Morgan (1885), 15 Q. B. D. 228, C. A., discussed and distinguished, Tayloe v. Smith (1893), 2 Q. B. 65, G. A. See now sect. 4 (3), post, p. 13. Parkinson v. Lee (1802), 2 East, 314, criticised, Jones v. Bright (1829), 5 Bing. 533, distinguished, Mody v. Gregson (1868), L. E. 4 Ex. 49, at p. 54, disapproved, Eandall v. Newson (1877), 2 Q. B. D., at p. 106, C. A. Paterson v. Task (1743), 2 Sh. 1178, overridden by Factors Acts, Cole v. North Western Bank (1875), L. E'. 10 C. P. 354, at p. 370, Ex. Gh. Phillips V. Huth (1840), 6 M. & W. 572, overeidden by Factors Acts, Cole v. North Western Bank (1875), L. E. 10 C. P. 354, at pp. 367, 370, Ex. Ch. Pichard v. Sears (1837), 6 A. & E. 469, considered, Johnson v. Credit Lyonnais (1877), 3 G. P. D. 32, at p. 40, C. A. XXX TABLE OF CASES OVERRULED, ETC. Richard v. Moore (1878), 38 L. T. n.b. 841, discussed. Page v. Morgan (1885), 15 Q. B. D. 228. Rodger v. Oomptoir d^Escompte (1869), L. R. 2 P. C. 393, dissented from, Leask v. Scott (1877), 2 Q. B. D. 376, 0. A. Roper V. Johnson (1873), L. E. 8 0. P. 167, discussed, Johnstone v. MiiiUNG (1886), 16 Q. B. D. 460, at p. 471, C. A. Ryder v. Wombwell (1868), L. K. 3 Ex. 90, and L. K. 4 Ex. 32, dissented from, Johnstone v. Makes (1887), 19 Q. B. D. 509. Salter v. Woollams (1841), 2 M. & Gti, 650, explained, Benjamin on Sale, 4th ed., p. 683. Shepherd v. Harrison (1871), L. R. 5 H. L. 116, distinguished, Ex. p. Banner (1876), 2 Ch. D. 278, at p. 288, C. A., Mirabita V. Ottoman Bank (1878), 3 Ex. D. 164, at p. 173, C. A. Shepherd v. Eain (1821), 5 B. & Aid. 240, distinguished, Taylor V. BuLLBN (1850), 5 Exch. 779, at p. 784. Sluley V. Hayward (1795), 2 H. Bl. 504, distinguished, Ex p. Cooper (1879), 11 Oh. D. 68, C. A. Smith V. Surman (1829), 9 B. & C. 561, explained, Marshall v. Green (1875), 1 0. P. D., at pp. 40-44. Spalding v. Ruding (1843), 12 L. J. Ch. 503, discussed and approved, Kemp v. Falk (1882), 7 App. Cas. 573. Spartali v. Benecke (1850), 10 0. B. 212, overruled on second point. Field v. Lelean (1861), 30 L. J. Ex., at p. 169, Ex. Oh., ' distinguished, Godtz v. Rose (1855), 17 C. B. 229, at p. 234. Taylor v. Eymer (1832), 3 B. & Ad. 320, overridden by Factors Acts, Cole v. North Western Bank (1875), L. E. 10 C. P. 354, at p. 370, Ex. Ch. Tregelles v. Sewell (1861), 7 H. & N. 574, discussed, Caloutta Co. V. Db Mattos (1863), 32 L. J. Q. B. 322, at pp. 330, 335. Tripp V. Armitage (1839), 4 M. & W. 687, discussed, Seath v. Moore (1886), 11 App. Cas. 350, 381. 2'yers v. Rosedale Co. (1873), L. R. 8 Ex. 305; reversed by Exchequer Chamber (1875), L. R. 10 Ex. 195. Valpy V. Oakeley (1851), 16 Q. B. 941, considered. Ex p. Chalmers (1873), L. R. 8 Ch. App. 289, at p. 292. nckers v. Hertz (1871), L. R. 2 H. L. So. 113, explained. Cole v. North Western Bank (1875), L. K. 10 C. P. 354, at p. 374, Ex. Ch. Wait V. Baker (18i8), 2 Exch. 1, distinguished, Mirabita v. Ottoman Bank (1878), 3 Ex. D. 164, at p. 170, C. A. Warlow V. Harrison (1858), 28 L. J. Q. B. 18, distinguished. Main- price V. Westley (1865), 34 L. J. Q. B. 229. TABLE OF OASES 07EBBULED, ETC. xxxi Ex p. Watson (1877), 5 Ch. D. 35, distinguished, Ex p. Miles (1885), 15 Q. B. D. 39, 0. A. ; Kendal v. Marshall (1883), 11 Q. B. D. 356, at p. 369, C. A. Wentworth v. Outhwaite (1842), 10 M. & "W. 436, considered. Ex p. Chalmers (1873), L. E. 8 Ch. App. 289, at p. 292. Se Westzinthus (1833), 5 B. & Ad. 817, discussed and approved, Kemp V. Falk (1882), 7 App. Cas. 573. Whitehouse v. Frost (1810), 12 East, 614, questioned, Austen v. Craven (1812), 4 Taunt. 645, explained ; Busk v. Davis (1814), 2 M. & S. 397, at p. 404, and Benjamin on Sale, 4th ed., p. 313. Wilkinson v. King (1809), 2 Camp. 335, discussed. Cole v. North Western Bank (1875), L. E. 10 C. P. 354, at p. 364, Ex. Ch. Woods v. Russell (1822), 5 B. & Aid. 942, overruled on one point, Seath v. Moore (1886), 11 App. Cas. 350. THE SALE OF GOODS ACT, 1893. (56 & 57 ViOT. 0. 71.) An Act for codifying the Law relating to the Sale of a. d. 1893. Goods. [20th February 1894.] \^Note. — Scotch technical terms, which were inserted in the Bill when it was applied to Scotland, are printed in square brackets.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembler], and by the authority of the same, as follows : PAET I. FOBMATION OF THE CONTRACT. Contract of 8ale. 1. — (1.) A contract of sale of goods is a contract whereby Sale and the seller transfers or agrees to transfer the property in tf sei"™ goods to the buyer for a money consideration, called the price,^ There may be a contract of sale between one part part owner and another. ''^™«''"- (2.) A contract of sale may be absolute or conditional.^ ' Blaekhurn on Sale, p. 3 ; Benjamin on Sale, 4th ed., pp. 1, 273 ; Indian Contract Act (Act IX. of 1872), § 77 ; Indian Transfer of Property Act (Act IV. of 1882), § 54. ' Benjamin on Sale, 4th ed., p. 282. 2 THE SALE OF GOODS ACT, 1893. Sect. 1. (3.) Where under a contract of sale the property in SaiT^d *^® goods is transferred from the seller to the buyer the agreement contract is Called a sale ; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an '' agreement to sell." ^ (4.) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.^ This section appears to be purely declaratory. By sect. 62, post, p. 109, " contract of sale " includes an agreement to sell as well as a sale ; and " sale " includes a bargain and sale as well as a sale and delivery ; and " property " means the general property in goods and not merely a special property. The general property or ownership in a thing must be distinguished from a merely special property, such as that of a bailee. See post, p. 113; and see the right of property in a thing distinguished from the right to the possession of it, post, p. 113. See " goods" defined by sect. 62, post, p. Ill ; and as to the " price," see sects. 8 and 9, post, p. 18. Nature of Sub-sect. 1. The essence of sale is the transfer of the property in a sale. thing from one person to another for a price. Hence it has been said that if a man purchase his own goods there is no sale. Suae rei emptio non valet, sive sciens, sive ignora/ns emerit? But one co-owner may sell to another, and there are clearly certain quasi-exceptions to the rule ; for instance, when a man's goods are sold under an execution or distress he may himself become the purchaser. Pothier, writing before the Code Napoleon, objects to sale being defined as a transfer of the property in a thing, because, he says, a ' JBlackbum on Sale. pp. 3, 4 ; Benjamin on Sale, 4th ed., p. 273 et seq. ; cf. HeilbuU v. Hickson (1872), L. K. 7 0. P., at p. 449. = Blackburn on Sale, pp. 120, 167; Bislwpy. Shillito (1819), 2 B. & Aid. 329, n. (special condition) ; Bohde v. Thwaites (1827), 6 B. & 0. 388 at p. 398 (appropriation of goods to contract); Bianchi v. Nash (1S36), i'm. & W. 545 (special condition); Ex p. Orkwcour (1878), 9 Oh. D. 419, at p. 424, 0. A. (hire purchase agreement); Beeves v. Barlow (1884),' 12 Q. B. D. 436, at p. 442, 0. A. (building contract). See further, sect8.'l6- 20, post, p. 36. ' i Black. Com., 450; Pothier, Contrat de Vente, No. 8; ef Scotson v Pegg (1861), 30 L. J. Ex., at p. 226. CONTRACT OF SALE. 3 man may in good faith sell a thing which is not his own, and if this Sect. 1. be so the buyer cannot complain until his possession is disturbed. The seller, he says, merely contracts with the buyer, " de lui faire avoir librement, a titre de propri^taire, une chose pour le prix d'une certaine somme d'argent." In this view he followed the Civil Law, Hactenm ieneiur ut rem emptori habere Uceat, non ut ejus faciat.^ The objec- tion seems hypercritical, for, as between the parties to the contract, sale is a transfer of the property in the goods sold. The purport of the contract is that the seller divests himself of all proprietary right in the thing sold in favour of the buyer.^ The framers of the Code Napoleon have adopted this opinion, and in Prance, as in England, an unconditional sale passes the property in the thing sold, so far as the parties to the contract are concerned.^ Whether a given contract be a contract of sale or some other kind Cognate of contract is a question of substance and not of form. Thus it contracts, depends on the real meaning and nature of a contract whether it is to be construed as a contract of sale or a mere guarantee for the price ; * as a contract of sale or a bailment on trust ; '' as a contract of " sale or return," or a contract of del credere agency ; ^ as a contract of sale or a contract of loan on security or mortgage ; ' as a contract of sale or a contract for work and materials.^ The question whether a given contract be a contract of sale or some other allied form of contract, though often difficult to determine, is of practical, and not merely oftheoretical importance. A contract for work and materials does not come within sect. 17 of ■w'ork and the Statute of Frauds, now reproduced in sect. 4 of this Act ; but if materials. in writing it must be properly stamped, whereas contracts of sale are exempt from stamp duty. Opinions have differed much as to the test for distinguishing between these two contracts, but since the case of Lee V. Qriffin, decided in 1861, the rule seems to be " that if the con- tract is intended to result in transferring for a price from A to B an ' Pothier, Contrat de Vente, No. 1 and No. 48 ; Moyle's Sale in the Civil Law, pp. 3, 108. = Walker v. Mellor (1848), 11 Q. B. 478. 3 French Civil Code, art. 1583; Italian Commercial Code, art. 59. • Button v. LippeH (1883), 8 App. Cas. 309, P. 0. ^ South Australian Ins. Co. v. Bandell (1869), L. K. 3 P. C. 101. " Bx p. White, Be Nevill (1870), L. E. 6 Ch. App. 397 ; cf. JEx p. Bright (1879), 10 Oh. D. 566, 0. A. ' Ex p. Harvey & Co. (1890), 7 Morrell, 138 ; Ee Watson (1890), 25 Q. B. D. 27, C. A. ; cf. sect. 61 (4), post, p. 108. » Lee V. Griffin (1861), 30 L. J. Q. B. 252. B 2 TEE SALE OF GOODS ACT, 1893. Gift. Exchange of goods or barter. Sect. 1. article in whicli B had no previous property," it is a contract of sale.' Where goods are transferred by one person to another without any price or other consideration being given in return, the transaction is called a gift. Where a gift of goods is not effected by deed, it is incomplete and ineffectual until delivery to the donee of the thing intended to be given. The intention to transfer the property is of no avail. The distinction between sale and gift in this respect has lately been elaborately dis- cussed by Lord Bowen.^ Where the consideration for the transfer of the property in goods from one person to another consists of other goods, the contract is not a contract of sale, but is a contract of exchange or barter.' But if the consideration for such transfer consists partly of goods and partly of money, it seems that the contract is a contract of sale.* When a statute refers in terms to contracts of sale (as, for instance, the Statute of Frauds and the Stamp Act), it seems clear that it would have no application to contracts of exchange. Sect. 5 of Factors Act, 1889, post, p. 126, for its special purpose, draws a distinction between sales and exchanges. But, apart from statute, it seems that rules of law relating to sales apply in general to contracts of barter or exchange; but the question has been by no means fully worked out." The Bill originally contained a clause applying its provisions mutatis ' Benjamin on Sale, 2nd ed., p. 84 ; Lee v. Griffin (1861), 30 L. J. Q. B. 252, at p. 254, per Blackburn, J. ; cf. Anglo-Egyptian Navigation Co. v. Rennie (1875), L. E. 10 0. P. 271, and Law Quarterly Beview, vol. i. p. 8 The difficulty is an old one, and was much debated by the Roman lawyers. See List. IIL, 24-4, and Moyle's Sale in the Civil Law, pp. 6-8 " Coohrane v. Moore (1890), 25 Q. B. D. 57, 0. A. ; Law Quarterly Review, vol. vi. p. 446 ; Kilpin v. Ratley (1892), 1 Q. B. 582. ' BuUen and Leake, Free, of Plead., 3rd ed., p. 151 ; Benjamin on Sale 2nd ed., p. 2; Harrison v. LuJce (1845), 11 M. & "W. 139; French Civil Code, art. 1702. * Aldridge v. Johnson (1857), 27 L. J. Q. B. 296 ; Sheldon v. Cox (1824), 3 B. & C. 420, where the goods had been delivered and the action was brought for the money balance. Cf. Forsyth v. Jervis (1816), 1 Stark 437; Bull v. Parker (1842), 12 L. J. Q. B. 93; Sarman v. Reeve (1856),' 25 L. J. C. P. 257 ; South Australian Lis. Co. v. Randell (1869) L R 3 P. C. 101 (alternative consideration). ° Cf Fairmaner v. Budd (1831), 7 Biug. 574 ; Emanuel v. Dane (1812) 3 Camp. 299 (warranty); La Neuuille v. Nourse (1813), 3 Camp 350 (caveat emptor); Pothier, Contrat de Vente, No. 620, citing the vule per- mutatio vioina est emptioni; French Civil Code, arts. 1702-1707 CONTRACT OF SALE.' 5 mutandis to exchanges, but the clause was cut out by the Commons Seot. 1. Select Committee. The distinction between sale and exchange seems a universal one. Its effects in France are discussed at length by Pothier.i In Roman law the matter was long a subject of controversy, but it was eventually settled by imperial rescripts.^ " It is important," says Mr. Moyle, speaking of Eoman law, " to distinguish between sale (emptio venditio) and exchange (jpermutatio), for they belong to different classes of contract, and their respective vincula Juris are imposed by different causes. Permutatio is one of the innominate contracts ; there is no obligatio till one of the two exchanging parties has done what he has promised; but in sale which is consensual, the obligatio is independent of part performance. It is not, however, necessary that the whole price shall be in money (Big. 18, 1, 79) ; and if after the contract is concluded the vendor changes his mind and agrees to take goods in lieu of the purchase money, it remains sale, and does not become exchange.^ Pothier points out that the contract of sale is consensual, bilateral Relation of ' (synallagmatique), and commutative.* In part it is governed by s^le to principles peculiar to itself, and in part by principles common to ''°°*™''' all contracts of the description above referred to. The Act, except ^' incidentally, deals only with the first-mentioned principles. The principles of law which govern the contract of sale, in common with all other consensual contracts, are outside its scope. But they are expressly saved by sect. 61, post, p. 108. If the law of contract were codified, the present Act would form a single chapter in the code. The present work is limited in the same manner as the Act. The contract of sale must be founded on mutual consent, and it may be avoided for fraud or illegality. But as regards these matters, and such matters as substituted performance, rescission, or what constitutes a valid tender, the reader is referred to general works on the law of Contract. Sub-sect. 2. As the contract of sale is consensual, it follows that it Conditional may be either absolute or conditional, as the parties may please. The """'^^'S OX SA16* ' Pothier, Conirat de Vente, No. 620, and see arts. 1702-1707 of the French Civil Code, which now regulate the matter. ^ Moyle's Sale in the Civil Law, pp. 3-5 ; Moyle's Justinian, p. 420. ' Moyle's Justinian, p. 420. By art. 1703 of the French Civil Code, the contract of eicliange is made consensual like sale. As to the origin of sale in exchange, and how the two contracts were differentiated, see Dig. 18, 1, 1. ' See also Moyle's Sale in the Civil Law, pp. 1-3. TEE SALE OF GOODS ACT, 1803. Sect 1. Sale and agreement to sell dis- tinguished. conditions inserted by the parties may be either conditions precedent or conditions subsequent. In the more apt phraseology of the French lawyers, a contract of sale may be either a sale pure and simple, transferring the property absolutely to the buyer, or it may be subject to a "suspensive" or "resolutive" condition.^ The division of conditions into those which are .suspensive and those which are resolutive is convenient, because those terms mark clearly the distinction between an agreement for sale which is to become an actual sale on the fulfilment of a particular condition, and an actual sale passing the property to the buyer, but subject to defeasance on the happening of some specified event. When goods are sold by weight or measure, the weighing and measuring are suspensive conditions, and if goods be sent on approval, the approval of the buyer constitutes a suspensive condition (see sect. 18, post, pp. 39, 40). But if goods be sold by auction with a" condition that they may be re-sold if not paid for within twenty-four hours, the condition is resolutive.^ Cave, J., has pointed out that a sale with a condition for re-sale to the original seller may be quite distinct from a mortgage.^ Sub-sect. 3. The term contract of sale includes both actual sales and agreements for sale. It is important to distinguish clearly between the two classes of contracts. An agreement to sell, or, as it is often called, an executory contract of sale, is a contract pure and simple j whereas a sale, or, as it is called for distinction, an executed contract I of sale, is a contract plus a conveyance.^ By an agreement to sell a JUS in personam, is created, by a sale a Jus in rem is transferred. Where goods have been sold, and the buyer makes default, the seller may sue for the contract price, but where an agreement to buy is broken, the seller's remedy is an action for unliquidated damages. If an agreement to sell be broken by the seller, the buyer has only a personal remedy against the seller. The goods are stiU. the property of the seller, and he can dispose of them as he likes ; they may be taken in execution for his debts, and, if he becomes bankrupt, they pass to his trustee, who may disclaim the contract. But if there has been a sale, and the seller breaks his engagement to deliver the "oods the buyer has not only a personal remedy against the seller, but also • French Civil Code, arts. 1583, 1584; cf. Moyle's Sale in the Civil Law, p. 165. " See Lamond v. Davall (1847), 9 Q. B. 2030 ; Head v. Tattersall (1871), 7 L. E. Ex. 7. For a peculiar resolutive condition containing a term for novation, see Crrissell v. Bristowe, L. R. 4 C. P. 36. ' Beckett v. Tower Assets Go. (1891), 1 Q. B., at p. 25 ; cf. sect. 61 (2). ' Cf. Austin's Jurisprudence, p. 1001. Agreement to sell into sale. CONTRACT OF SALE. 7 the usual proprietary remedies in respect of the goods themselves, Sect. 1. such as the actions for conversion and detinue. In many cases, too, - — he can follow the goods into the hands of third parties. Again, if there be an agreement for sale, and the goods are destroyed, the loss, as a rule, falls on the seller, while, if there has been a sale, the loss, as a rule, falls upon the buyer, though the goods have never come into his possession. Sub-sect. 4. By sect. 62, post, p. 114, the term " sale " includes a bargain and sale, as well as a sale and delivery .1 According to the Civil Law which, with some statutory modifications, prevailed in passing Scotland before the Act, the property in the goods sold did not pass to the buyer until delivery.^ But English law has rejected the objective test of delivery, and has adopted the rule that the property in the goods may be transferred by the contract itself if the parties so intend.' The parties may make whatever bargain they please, and the law will give effect to it. When the parties express their intention clearly no difficulty arises. The contract may pass the property at once, or at a future time, or contingently on the performance of some condition.* But in many cases the parties either form no intention on the point, or fail to express it. To meet such cases the Courts worked out a series of more or less artificial rules for determining when the property is to be deemed to pass, according to the imputed intention of the parties. These rules are now reproduced in sect. 18 of the Act, post, p. 38. M. Viollet, in -an interesting chapter in his " History of French Law," traces the steps by which French lawyers gradually discarded delivery as the means of passing the property, and arrived at a rule similar to our own.^ ' As to the old distinction between the action for goods bargained and sold and the action for goods sold and delivered, see BuUen and Leake, Free, of Plead., 3rd ed., pp. 8, 9. 2 ^eepost, p. 38, and Moyle's Sale in the Civil Law, p. 110. ' See Blackburn on Sale, pp. 187-197, who finds traces of the rule as far back as the time of Edward 4. The history of the question is treated exhaustively in the judgment in Cochrane v. Moore (1890), 25 Q. B. D. 57, C. A. * See Blackburn on Sale, p. 167 ; Johnson v. Macdomld (1842), 9 M. & W. 600. = Viollet, Bistoire du Droit Franfais, pp. 515-523. See now French Civil Code, art. 1583. THE SALE OF GOODS ACT, 1893. Sect. 1. Satisfied judgment in trover, trespass, or detinue. Sale in- duced by fraud. Sale by estoppel. Quasi-Contracts of Sale. The Act deals only with contracts of sale, properly so called. But there are certain quasi-contracts of sale which require to be noted. By a quasi-contract of sale is meant a transaction to which, inde- pendently of the will of the parties, the law annexes consequences similar to those which result from a sale.^ For example : — (1.) Where in an action for trespass to, or the conversion or wrong- ful detention of goods the plaintiff recovers the full value of the goods as damages, and the defendant satisfies the judgment, the transaction, operates as a sale of the goods from the plaintiff to the defendant as from the time when the judgment is satisfied.^ " The theory of the judgment in an action of detinue," says Jessel, M.E., " is that it is a kind of involuntary sale of the plaintiff's goods to the defendant. The plaintiff wants to get his goods back, and the Court gives him the next best thing, that is the value of the goods. If he does not get that value then he does not lose his property in the goods." ^ It has been suggested that when the judgment is satisfied the defendant's title relates back to his wrongful act,* but the doctrine of relation is not in accordance with the general principles of English law. An unsatisfied judgment does not transfer the property. (2.) Again, it has been held that where a plaintiff has been induced, by the fraud of a third person, to sell goods to an insolvent buyer, and such third person has afterwards obtained the goods himself, the plaintiff may waive the tort, and treat the transaction as a sale to such third person." (3.) So, too, there may be a sale by estoppel. Suppose a defendant sells specific goods to one person, and the documents of title to the goods to another person, he would be liable to both, though a doubt might arise as to which person would be entitled to the goods. So ' As to quasi-contracts, see Anson on Contract, 6th ed., p. 357. " Jenkins' ith Cent. Cos., No. 88, as to trespass, citing tlie maxim ^^ Solutio pretii emptionis loco habetur" ; Cooper v. Shepherd (1846), 3 C. B. 226, 15 L. J. C. P. 237 ; Brinsmead v. JJarrison (1871), L. E. 6 C. P. 584, at p. 588, as to trover or conversion ; Ex p. Drake (1877), 5 Ch. D. 866, 0. A., as to detinue; cf. Mherle v. Jonas (1887), 18 Q. B. D., at p. 468. » Ex p. Drake (1877), 5 Ch. D. 866, at p. 871, C. A. ■* Addison on Torts, 4th ed., p. 969. Ko case in point. " Benjamin on Sale, 4th ed., p. 58 ; Hill v. Perrott (1810), 3 Taimt. 274 ; Koscoe's N. P., 15th ed., p. 493. CAPACITY OF PARTIES. 9 too a person by holding himself out as the buyer may be liable as Sect. 1. such.^ Cajaacity of Parties. 2. Capacity to buy and sell is regulated by the general Capacity law concerning capacity to contract, and to transfer and '"u^"^ ^""^ acquire property.^ Provided that where necessaries are sold and delivered to an infant [or minor] or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor.^ " Necessaries " in this section mean goods suitable to the condition in life of such infant [or minor] or other person,* and to his actual requirements at the time of the sale and delivery.^ Capacity to contract must be distinguished from authority to contract. Capacity means power to bind oneself; authority means power to bind another. Capacity is part of the law of status ; authority is part of the law of principal and agent. Capacity is usually a question of law ; authority is usually a question of fact. As regards authority to buy or sell on behalf of another there appears to be nothing peculiar to the contract of sale, except the provisions of the Factors Acts, post, p. 118. On this subject, therefore, the reader is referred to general works on the law of Agency and Partnership. The term "minor" is the Scotch equivalent of our term infant. The section is probably declaratory. As Cotton, L.J., has pointed out, when necessaries are supplied to a person who is incompetent to con tract, the obligation to pay for them arises really qimsi ex contractu." He cannot bind himself to pay for them, but it is for his benefit that ' Cornish v. AUngton (1859), 28 L. J. Ex. 262. As to property by estoppel see Blackburn on Sale, 2nd ed., p. 190 ; Coventry v. Great Eastern Railway Co. (1883), II Q. B. D. 776 (two delivery orders for same goods). ^ See Pollock on Contracts, 4th ed., pp. 49-94; Benjamin on Sale, 4th ed., pp. 23-41, ' Ryder v. Wmnbwell (1868), L. B. 4 Ex. 32, at p. 38, Ex. Oh. * Ibid. ; Peters v. Fleming (1840), 6 M. & W. 42, at p. 46, per Parke, B., and p. 48, per Alderson, B. ; Pollock on Contracts, 4th ed., p. 71. * Barnes v. Toye (1884), 13 Q. B. D. 410 ; Johnstone v. Marks (1887), 19 Q. B. D. 509. 0. A. ' He Rhodes (1890), 44 Ch. D. 94, at pp. 105-107, 0. A. (lunatic). 10 THE SALE OF GOODS ACT, 1893. Sect. 2. Lunatic. Drunken man. Infant or minor. Married woman. lie should have them, and the law therefore will see that they are fairly paid for. The obligatioa to pay arises re and not consensut As a rule 'a contract made with an insane person, known to be insane, cannot be enforced against him ; but his estate is held liable for necessaries supplied to him.^ A contract made by a drunken man, known to be drunkj is, as a rule, voidable ; 2 but, as Pollock, C.B., says, a drunkard is liable " when sober for necessaries supplied to him when drunk." ^ By sect, 1 of the Infants Belief Act, 1874 (37 & 38 Vict. c. 62), " all contracts . , . for goods supplied, othei' than contracts for neces- saries, and all accounts stated with infants shall be absolutely void," * The language of that Act is consistent with the view that an infant might be liable on an executory contract to supply him with neces- saries, but an infant has never been held liable for breach of contract to accept necessaries, or for necessaries bargained and sold, but not delivered. The Law Lords thought the present section merely declaratory. As the law makes the contract for the infant, and for his benefit, he is only liable to pay a reasonable price, and not any price he may have been led to agree to.'' Under the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), a married woman has full capacity to acquire and dispose of property and to contract. As promisee under a contract she has the same rights as a man, but her liability as promisor is peculiar. She is not personally liable. Her contracts are only enforceable against her in so far as she has separate estate free from restraint on anticipa- tion. Moreover, it must be shown that she had available separate estate at the time she made the contract.^ But as to the latter point see now the Married Women's Property Act, 1893 (56 & 57 Vict, c, 63). Ee Wiodes (1890), 44 Ch. D. 94, Stone (1892), 1 Q. B, 599, 0. A.. ' Leake on Contracts, 3rd ed., p. 501 ; 0. A. (necessaries); Imp. Loan Go. v. (oontraot). ' Lealce on Contracts, 3rd ed., p. 505. = Gore V. Gibson (1845), 13 M. & W., at p. 625. * The term " absolutely void " is inapt, because a person of full age is bound by his oontraot with an infant. The effect of the Act is to make an agreement by an infant irrevocably voidable at the option of the infant, even after he attains majority. ' As to infanta' contracts in general, see Leake on Contracts, 3rd ed p. 466. ' PalUser v. Gurney (1887), 19 Q. B. D. 519 ; Leak v. BuffieU (1890), 24 Q. B. D. 98 ; Leake on Contracts, 3rd ed., p. 480. As to debts con- tracted before marriage, see Jay v. BoMnson (1890), 25 Q. B. D. 467, As to liability after husband's death for debts contracted during marriage, see Pelton v, Earrison (1891), 2 Q. B. 422. FORMALITIES OF THE CONTRACT. 11 In certain cases a husband may be liable for necessaries supplied Sect. 2. on the order of his wife. When husband and wife are living together the power of the wife to bind her husband is somewhat indefinite. Power of " A married woman," says Mr. Leake, " is presumptively invested with ■*"*^ *° a certain authority to contract as agent for her husband. It is a , , , •' ° husband, delegated, not an inherent authority ; the wife can bind her husband only as agent, and a party seeking to charge him with a contract of the wife, Tnust prove the authority. The authority may be referred to two sources : cohabitation, during which the wife is presumptively authorised to manage the domestic affairs of the husband; and necessity, caused by the husband refusing or failing to maintain his wife."i The italicised propositions seem somewhat inconsistent, and there is authority in support of both. When a wife is separated from her husband, through his misconduct, and he does not make proper provision for her maintenance, she has, by implication of law, authority to bind him for necessaries.^ The master of a ship has an impUed authority to bind the owner Master of for the price of necessaries supplied for the ship.^ ship. The section, it is to be noticed, deals only with the question of capacity to buy and sell. The saving of the law of principal and agent by sect. 61 (2) covers the cases where one person has an implied authority to act on behalf of another. Formalities of the Contract. 3. Subject to the provisions of this Act and of any contract of statute in that behalf,* a contract of sale may be made ^*^^' ^°^ '' made. in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth,^ or may be implied from the conduct of the parties.® » Leake on Contracts, 3rd ed., p. 493. 2 Leake on Contracts, 3rd ed., p. 494 ; Wilson v. [Glossop (1888), 20 Q. B. D. 354, 0. A. » Mackintosh v. Mitchison (1849), 4 Exch. 175 ; and Leake on Contracts, 3rd ed., p. 448. * See next section reproducing the Statute of Frauds, and see the Merchant Shipping Act, 1854 (17 & 18 Vict. o. 104), ss. 55-65, transfer of British ships and shares therein by bill of sale only ; and Atkinson v. Moling (1788), 2 T. E. 462. As to sale of sculpture with copyright, see 54 Geo. 3, c. 56. * BlacKburn on Sale, pp. 43-45 ; Benjamin on Sale, 4th ed., p. 180 ; LocJieU V. Nieklin (1848), 2 Exch. 98, 19 L. J. Ex. 403. « Srogden v. Metropolitan By. Co. (1877), 2 App. Oas. 666, H. L.; ef. 12 TEE SALE OF GOODS ACT, 1893. Sect. 3. Provided that nothing in this section shall affect the law relating to corporations. A written offer to sell goods may be verbally accepted, and vice versd.^ If, however, the parties have put a contract of sale into writing, the ordinary rules of evidence apply. Parol or oral evidence is inadmissible to contradict the terms of the written instrument ; but such evidence is admissible to explain it, and, in explaining it, to annex incidents thereto.^ Oral evidence is of course admissible to avoid a contract, whether in writing or not, as for instance to show that it was induced by fraud, or founded on such mistake as to prevent what appears to be a contract ever having been a contract at all.^ In some cases by common law, and in others by statute, a corpora- tion can only contract by instrument under seal.* The proviso saves this rule. Contract of 4. — (1.) A Contract for the sale of any goods of the lo;. and value of ten pounds or upwards shall not be enforceable upwards by action unless the buyer shall accept part of the goods 0. 3. s. 17. SO sold, and actually receive the same, or give something and 9 Geo. j^ earnest to bind the contract, or in part payment, or 7.] unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf. (2.) The provisions of this section apply to every such Beverley v. Lincoln Gas Co. (1837), 6 A. & E. 829 ; Cornish v. Abington (1859), 28 L. J. Ex. 262. ' As to the construction of euoh contracts, see WatMns v. Bymill (1878), 10 Q. B. D. 178, 188 (sale at horse repository). ' Taylor on Evidence, §§ 1058, 1067; Stephen's Law of Evidence, art. 90. As to incidents annexed by usage, see Syers v. Jones (1848), 2 Exoh. Ill, usage to sell by sample; Brown v. Byrne (1854), 3 E. & B. 703, usage to deduct discount; Field v. Lelean (1861), 30 L. J. Ex. 168, Ex. Oh., usage not to deliver till time of payment arrives. See further notes to Wigglesworth v. Dalliton, 1 Smith, L. C, 9th ed., p. 569. ' As to fraud, see Chanter v. Hopkins (1838), 4 M. & W., at p. 406 ; Kennedy v. Panama Co. (1867), L. R. 2 Q. B. 580. As to mistake, see Boulton V. Jones (1858), 27 L. J. Ex. 117 ; Baffles v. Wichelhaus (1864), 33 L. J. Ex. 160; Smith v. Hughes (1871), L. E. 6 Q. B. 597. ' Leake on Contracts, 3rd ed., p. 506. FORMALITIES OF THE CONTRACT. 13 contract, notwithstanding that the goods may be in- Sect. 4. tended to be delivered at some future time, or may not .9 Z^^ at the time of such contract be actually made, procured, c. 14. s. 7.] or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. (3.) There is an acceptance of goods within the mean- ing of this section when the buyer does any act in relation to the goods which recognises a pre-existing contract of sale whether there be an acceptance in performance of the contract or not.^ (4.) The provisions of this section do not apply to Scotland. This section reproduces the provisions of the Statute of Frauds. That Act never applied to Scotland, and Scotchmen never appear to have felt the want of it. Its policy has frequently been severely criticised in England.^ Sub-sect. (1.) This sub-section reproduces the 17th sect, of the Statute of Statute of Frauds ' in somewhat altered language. The alterations ^™"^s. in its language were made (a) to make it harmonise with the lan- guage of the rest of t"he Act ; (V) to give effect to its construction with the amending Lord Tenterden's Act; (c) to give effect to certain decisions which have placed an unexpected interpretation upon some of its terms. The repealed 17th section is set out in the Appendix, post, p. 143, with a note of the more important decisions upon it. As regards alterations in language, " value " is substituted for "price" to give effect to cases which held such was the operation of the construction of Lord Tenterden's Act with the 17th sect.* The words "enforceable by action" are substituted for "allowed to be good " to give effect to cases which held that the words in question were the equivalent of "no action shall be brought" in the 4th section, and that they did not make the contract void, hut merely • Page v. Morgan (1885), 15 Q. B. D. 228, C. A. ; Benjamin on Sale, 4th ed., p. 149. ' See Law Quarterly Review, vol. i. p. 1, by Mr. Justice Stephen and Sir F. Pollock. ' Printed as sect. 16 in the Statutes Revised. * Earman v. Reeve (1856), 25 L. J. Q. B. 257. 14 TEE SALE OF GOODS ACT, 1893. Sect. 4. unenforceable.! The word " contract " in line 7- is substituted for the word " bargain " because it is clear since Lord Tenterden's Act that the term " bargain " was equivalent to the term " contract '» used in the earlier part of the section. The words "party to be charged" are substituted for "parties to be charged" because it had been held that they must be so construed to make the enactment uniform with the 4th sect.2 The substitution of " his agent " for " their agents " is consequential.^ Sub-sect. (2.) This sub-section reproduces the repealed sect. 7 of Lord Tenterden's Act (9 Geo. 4, c. 14); the object of which was to make it clear that the Statute of Frauds applied to executory as well as executed contracts of sale. Sub-sect. (3) is necessary to preserve the eflect of the decisions reproduced by it, because for other purposes a definition of " accept- ance" is given by sect. 35 of the Act, post, p. 67. The sub-section adopts the language of Lord Bowen in Page v. Morgam,,* and perhaps disposes of the doubt expressed by Lord Herschell in Taylor v. Smith,^ where he observes that " acceptance is not used in the statute in its common acceptation, and in what precise sense it is used has never been determined." The curious refinements resorted to by successive generations of judges to exempt particular cases from the operation of the statute constitute a strong argument against its policy. Subject-matter of Contraet. w'futrae ^•~'(^-) ^^® S°°^^ ^^^°^ ^°'"™ ^^^ subject of a con- goods, tract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the. contract of sale, in this Act called " future goods." ^ (2.) There may be a contract for the sale of goods, the ' Maddison v. Alderson (1883), 8 App. Cas. 467, at p. 488, and see post, p. 144. Tlie amendment was made in the Commons Oommittee. See " action " defined by sect. 62. 2 Beuss V. Fixley (1866), L. E. 1 Ex. 342, Ex. Ch. '. Cf. Graham v. Musson (1839), 5 Bing. N. C. 603. ■• Page v. Morgan (1885), 15 Q. B. D. 228, at p. 233, C. A. = Taylor v. Smith (1892), 2 Q. B. 62, at p. 71, 0. A. ' Watts V. Friend (1830), 10 B. & 0. 446 (crop not yet sown) ; Eibble- white V. M'Morine (1839), 5 M. & W. 452 (goods which seller can only acquire by purchase) ; Pothier, Contrat de Vente, No. 5. SUBJECT-MATTER OF CONTRACT. 15 acquisition of which by the seller depends upon a con- Sect. 5. tingency which may or may not happen.^ (3.) Where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods.^ See the tenns "contract of sale," "future goods," "goods," and ■" specific goods " defined by sect. 62, post, p. 109. Sub-sect. (1.) The Eoman lawyers doubted whether an agreement to sell "future goods" constituted a contract of sale, but it is long since any such question has been raised in English law.^ The term " future goods " is not a very happy one, but the alternative " after- to-be-acquired goods " was impossible. Sub-sect. (2.) " Une simple esperance," says Pothier, " pent meme Emptio ■etre I'objet d'un contrat de vente; c'est pourquoi, si on vend 3. ^P^'* quelqu'un son coup de filet pour un certain pris, c'est un vrai contrat de vente." * There is very little English authority on the point. "No doubt," says Martin, B., "a man may buy the chance of obtaining goods," but he then goes on to say that in the case he was dealing with the plaintiff bought the goods themselves.^ Perhaps the doubtful case of Bagueley v. Hawley may be explained on the ground that the plaintiff there bought another man's bargain at an auction for what it was worth, and not the goods themselves.^ The purchase of a chance was known in the Civil Law as emptio ■spei. " If the intention of the parties is that the purchase-money shall be paid in any case, whether the hoped-for equivalent comes to anything or not, it is commonly called for the sake of distinction ■emptio spei simplicis. If it is, that it shall not be paid unless some- thing at any rate is forthcoming, or shall only be paid in proportion to what the purchaser actually gets, it is termed emptio rei speratce." ' ' Benjamin on Sale, 4th ed., p. 87 ; Pothier, Contrat de Vente, Nos. 6-9 ; ■cf. Watts V. Friend (1830), 10 B. & C. 446 (crop not yet sown) ; Bale v. Eawson (1858), 27 L. J. 0. P. 189 (goods to arrive by ship). ' Benjamin on Sale, 4th ed., p. 82 ; Lunn v. Thornton (1845), 1 C. B. 379, 14 L. J. 0. P. 161 (trover for furniture). ' Moyle's Sale in the Civil Law, p. 29 ; Hibblewhite v. M'Morine (1839), 5 M. & W. at 466. Sect. 7 of Lord Tenterden's Act, at any rate, concluded the question in England. ^ Pothier, Contrat de Vente, No. 6. « Buddie V. Green (1857), 27 L. J. Ex., at p. 34. * Bagueley v. Hawley (1867), L. E. 2 0. P.- 625 ; see, too, Chapman v. Speller (1850), 14 Q. B. 621 (sale by sheriff and sub-sale). ' Moyle's Sale in ilie Civil Law, p. 30. 16 THE SALE OF GOODS ACT, 1893. Sect. 5. Swb-secU (3.) The conditions under which an ordinary agreement to sell becomes a sale are dealt with in sect. 1, and sects. 16-20, post. Assign- p_ gg_ g^j. sometimes a contract purports presently to assign goods ™ " to be acquired in the future.* In such case the legal property in the qniied goods does not pass to the buyer unless and until the seller does some property. act irrevocably appropriating them to the contract,^ or the buyer takes possession of them under a licence to seize, which is equivalent to a delivery by the seller.* But if the goods be sufficiently described to be identified on acquisition by the seller, the equitable interest in them passes to the buyer as soon as they are acquired : * " A man cannot in equity, any more than at law, assign what has no existence. A man can contract to assign property which is to come into existence in the future, and when it has come into existence equity, treating as done that which ought to be done, fastens upon that property, and the contract to assign thus becomes a complete assignment."^ It is only the e(iuitable interest which passes to the buyer by the contract, hence his rights are liable to be defeated, if, before he gets the legal property in the goods, the seller disposes of them to a second purchaser without notice, who thus first obtains the legal estate." There was one case in which it was supposed at common law that future goods could be assigned. It was said that a man might sell future goods which had a " potential existence," and that then the legal property in them would pass to the buyer as soon as they came into actual existence. Goods were supposed to have a potential existence if they would naturally grow out of anything already owned by the seller. For instance, it was said a man might sell the wool to be grown on sheep which he then had, but not the wool on sheep which he was going to buy.' But there is no rational distinction between one class of future goods and another, and the supposed rule appears never to have been acted upon. Indeed, Langton v. Higgins, closely • See such a contract distinguished from an agreement to sell 'plus a license to seize, Beeves v. Whitmore (1864), 33 L. J. Ch. 63. ' Langton v. JKggins (1859), 28 L. J. Ex. 252. ' Congreve v. Evetts (1854), 10 Exoh. 298; 23 L. J. Ex. 273; Hope v. Mayley (1856), 25 L. J. Q. B. 155. * Eolroyd v. Marshall (1862), 10 H. of L. Cas. 191 ; 33 L. J. Cii. 193 ; cf. Tailby v. Official Receiver (1888), 13 App. Cas., at p. 546. » Gollyer v. Isaacs (1881), 19 Oh. D. 342 ; see at pp. 351, 354, 0. A. ' Joseph V. Lyons (1884), 15 Q. B. D. 280, 0. A. ; Hollas v. Bobinson (1885), 15 Q. B. D. 288, 0. A. ' Granlliam v. Haioley (1603), Hobart Kop. 132, 2 Roll. 48, pi. 20 ; Benjamin on Sale, 4th ed., p. 82. This was the emptio rei speratse of the Roman lawyers. SUBJECT-MATTER OF OONTBAGT. 17 looked at, seems to negative it.i The sub-section may therefore be Sect. 5. regarded as declaratory. 6. Where there is a contract for the sale of specific Goods goods, and the goods without the knowledge of the seller perfshed^''^ have perished at the time when the contract is made, the contract is void.^ By sect, 62, post, p. 114, unless the context or subject-matter other- wise requires, "specific goods" mean goods identified and agreed upon at the time a contract of sale is made. The rule may be based either on the ground of mutual mistake, or on the ground of impossibility of performance. It is confined to the case of specific goods. Generic goods, that is to say, goods defined by description only, come within the maxim genus numquam perit. Alt. 1601 of the French Civil Code provides that, in case of partial loss, the buyer may either rescind the contract or have the price reduced by valuation. English law recognises no such rule. The only question is whether the article has been so far destroyed as no longer to answer to the description of it given by the contract.^ Thus where a specific cargo of corn was sold at sea, and it turned out afterwards that before the sale the ship had stranded and the corn had been so damaged as not to answer to its description under the contract, the sale was held to be void.* But if a man contracts to sell five dozen of a particular brand of champagne, it would be immaterial if unknown to him his whole stock of wine had been destroyed by fire. He must procure five dozen of that champagne elsewhere or pay damages. A mixed case might arise which is not covered by the section. Suppose a man contracts to sell to B " five dozen of the '74 champagne now in my cellar," not knowing that all but three dozen had been destroyed by fire. The question has not been decided, but probably the contract would be void. ' Langton v. Biggins (1859), 28 L. J. Ex. 252 (contract to buy next crop of oil of peppermint, bottles sent by buyer and filled by seller). 2 Couturier v. Hastie (1856), 5 H. of L. Oas^ 673 ; 25 L. J. Ex. 253 ; of. aifford V. Watts (1870), L. B. 5 0. P. 677 ; Smith v. Myers (1870), L. K. 5 Q. B. 429, in Ex. Oh. L. B. 7 Q. B. 139 ; Benjamin on Sale, 4th ed., p. 81 ; Pothier, Contrat de Vente, No. 4 ; Pollock's Law of Contract, 4th ed., p. 370 ; French Civil Code, art. 1601 ; Moyle's Sale in tlie Civil Law, p. 21 ; Story on Sale, § 149. ' Barr v. Gibson (1838), 3 M. & W. 390 (stranded ship). * Couturier v. Hastie, supra. 18 TEE SALE OF 00 OB 8 ACT, 1893. Sect. 7. Goods perisMng liefore sale but after agreement to sell. Ascertain- ment of price. 7. Where there is an agreement to sell specific goods, and subsequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes- to the buyer, the agreement is thereby avoided.^ See " speci fie goods " defined by sect. 62, post, p. 114. The definitiou is only a primd facie definition. See " fault " defited, post, p. 1 11. It is to be noted that the rule applies to specifically described goods,, whether in existence at the time the contract is made or not. In a case where there was a contract to supply 200 tons of potatoes to be grown on a particular farm, and the crops failed, Mellish, L.J., said : — " This is not like the case of a contract to deliver so many goods of a particular kind, where no specific goods are to be sold. Here there was an agreement to sell and buy 200 tons out of a crop to be grown on specific land, so that it is an agreement to sell what will be, and may be called specific things ; therefore neither party is liable if the performance becomes impossible." ^ By special agreement goods may be at the buyer's risk before he- acquires the property in them. See sect. 20, post, p. 46. The Price. 8. — (1.) The price in a contract of sale may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties. (2.) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonabk price.* What is a reasonable price is a question of fact dependent on the circumstances of each particular case.* • Emoell V. Coupland (1874), L. E. 9 Q. B. 462, at p. 465, per Black- burn, J., and in C. A. (1876), 1 Q. B. D. 258, at p. 262, per Mellish, L. J. ; Pollock on Contracts, 4th ed., p. 370; of. Appleby v. Myers (1867), L. K. 2 O. P. 651 ; MlpMeh v. Barnes (1880), 5 C. P. D. 821. " Howell V. Coupland, suprk ' Acebal v. Levy (1834), 10 Bing. 376 ; Hoadly v. M'Laine (1884), 10 Bing. 482 ; Yalpy v. Gibson (1847), 4 0. B. 837, 864. * Aca>al V. Levy (1831), 10 Bing. 376, at p. 383, per Tindal, C. J. Such price may or may not be the market price according to circumstances. THE PBIQE. 19 An alternative price, if in the nature of a wager, avoids the oontraot.i Sect. 8. " Goods may be sold," says Wilde, C. J., " and frequently are sold, when it is the intention of the parties to bind themselves by a con- Reasonable tract which does not specify the price or mode of payment, leaving ^"''^' them to be settled by some future agreement, or to be determined by what is reasonable under the circumstances." 2 The clause originally provided that the price might "be left to be fixed by subsequent arrange- ment," but these words were struck out in Committee. Presumably if the price was subsequently fixed by the parties, the Court would hold that it was a reasonable price. Marine policies are now often effected " at a premium to'be arranged." Tiie same question arises there. A case that seems hardly covered by the above rules is put by Blackburn, J., who says, " When the price is not ascertained, and it couli not be ascertained with precision in consequence of the thing perishing, nevertheless the seller may recover the price, if the risk is clearly thrown on the purchaser by ascertaining the amount as nearly as you can." ^ Perhaps, however, the case falls within the rule of reasonable price. The doctrine of implied or reasonable price seems to be an original development of English law. The rule of Roman law was that the price, or the mode of fixing it, must be expressed in the contract itself. Pretium autem constitui oportet, nam nulla emptio sine pretio esse potest; sed et eertum pretium esse debetfi Sometimes part of the price is prepaid by way of security, when Deposit, the contract is entered into. The money so prepaid is called a deposit. The return of the deposit in case the sale goes off is usually a matter of agreement, but in the absence of a different agreement the deposit is forfeited if the sale goes off through the buyer's fault.^ As to action for price, see post, p. 91. » Eourhe v. Short (1856), 25 L. J. Q. B. 196 ; of. Brogden v. Marriott (1836), SBing.N. C. 88. 2 Valpy V. Gibson (1847), 4 0. B., at p. 864; Joyce v. Sioan (1864), 17 0. B. N.s., at p. 93. ' Martineau v. Kitehing (1872), L. R. 7 Q. B., at pp. 455, 456 (sugar shipped at buyer's risk at so much per cwt. and destroyed before it could be weighed). * Inst., lib. iii., tit. 23; Moyle's Sale in the Civil Law, pp. 68, 69. To like effect, Pothier, Contrat de Vente, No. 23 ; French Civil Code, arts. 1592, 1593. If the price was not fixed, the contract was innominate and not sale. ' 5 Howe V. Smith (1884), 27 Ch. D. 87, C. A. See the history of the law of earnest and deposit traced by Fry, L.J., at p. 94. For a definition of deposit by Lord Maonaghten, see Soper v. Arnold (1887), 14 App. Cas., at p. 435 : " The deposit serves two purposes ; if the purchase is carried out C 2 20 TEE SALE OF GOODS ACT, 1893. Sect. 9. 9. — (1.) Where there is an agreement to sell goods on Ag^ent tlie terms that the price is to be fixed by the valuation to sell at of a third party, and such third party cannot or does not make such valuation, the agreement is avoided;^ provided that if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor.^ (2,) Where such third party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault.^ In a case where one of the parties prevented the valuer from acting, Page Wood, V.C, refused specific performance, apparently on the ground that there was no complete contract, saying that the Court had adopted this principle from the Civil Law.* See Inst., lib. iii., tit. 23, where it is said, " Sin autem ille qui nominatus est vel non potuerit vel noluerit pretium definire, tunc pro nihilo esse venditionem quasi nulla pretio statuto." In some cases the party in fault might be restrained from pre- venting the valuer from acting.' See " fault " defined by sect. 62, post, p. 114. Conditions and Warranties. tionTM't ^^' — ^^'^ Unless a different intention appears from the time of terms of the contract, stipulations as to time of payment paymen . ^^^ ^^^^ deemed to be of the essence of a contract of sale.*" it goes against the purcliase-money ; but its primary purpose is this, it is a guarantee that the purchaser means business." ' Tlmrnell v. BalUrnie (1837), 2 M. & W. 786 (damages) ; Viclters v. Vickers (1867), L. E. 4 Eq. 529 (specific performance) ; Benjamin on Sale, 4th ed., p. 90. ^ ciarTte v. Westro-pe (1856), 25 L. J. 0. P. 287. ' Gf. Thomas v. Fredericks (1847), 10 Q. B. 775. See " fault " defined by sect. 62. * Vickers v. Viahers (1867), L. E. 4 Eq. 529, at p. 535. '' See Fry on Specific Performance, 4th ed., p. 523. ° Martindale v. Smith (1841), 1 Q. B. 389, see at p. 395, nonpayment on apfjointed day : cf. sect. 31, post, p. 63 ; and Mersey Steel and Iron Co. v. Naylor (1884), 9 App. Cas. 434, at p. 444. As to time of payment being essential, see Bishop v. Shilleto (1829), 2 B. & Aid. 329; Benjamin on Sale, 4th ed., pp. 290, 304. CONDITIONS AND W ABB AN TIES. 21 Whether any other stipulation as to time is of the essence Sect. lo. of the contract or not depends on the terms of the contract. ' (2.) In a contract of sale " month " means prima facie calendar month.^ As regards stipulations other than those relating to the time of payment, time is usually of the essence of the contract, at any rate in mercantile transactions.^ Thus, where there was a contract for the sale of twenty-five tons of pepper, " name of vessel or vessels, marks and particulars to be declared within sixty days of date of bill of lading," Cotton, L. J., says, " It was argued that the rules of Courts of equity are to be regarded in all Courts, and that equity enforced all contracts though the time fixed therein for completion had passed. This was in the case of contracts, such as purchases and sales of land where, unless a contrary intention could be collected from the contract, the Court presumed that time was not an essential condition. To apply this to mercantile contracts would be dangerous and unreason- able. We must therefore hold that the time within which the pepper was to be declared was an essential condition of the contract." ^ The present subdivision of the Act deals with conditions and war- Conditions ranties peculiar to the law of sale. But the Act must be regarded as and war- a single chapter in the general law of contract, and it therefore does ™°ties in not attempt to deal with the law of representations, conditions, and S^°era . warranties, in so far as they are governed by considerations common to the whole field of contract. In so far as sale is regulated by the general law of contract, the rules which apply are saved by sect. 61 (2), post, p. 108. No definition of condition precedent is given, but the matter is discussed in Note k.,post, p. 164. " Warranty," however, is defined by sect. 62, and it is contrasted with "condition" in sect. 11. This was requisite, because its proper meaning in the law of sale was much disputed ; see Note A., post, p. 168. It must be borne in mind that many stipulations, which are commonly spoken of as warranties, are really conditions precedent, and have always been given effect to as such. But whether a given stipulation is a condition or a warranty as defined by the Act, is not a question of name, but of the true con- struction of the contract. See sect. 11 (1), (6), post, p. 23. By sect. 5o,post, p. 103, any implied condition or warranty may be negatived or varied by express agreement, course of dealing, or usage. > Wehh V. Fairmaner (1838), 3 M. & W. 473; of. 15 & 46 Vict. o. 61, s. 14 (4). ' Bowes V. Sliand (1877), 2 App. Gas. 4.'55, at p. 463, per Ld. Cairns ; Renter v. Sola (1879), 4 0. P. D., at pp. 246, 219, 0. A. " Beuter v. Sala, suprk. 22 THE SALE OF GOODS ACT, 1893. Sect. 10. Exprees stipula- tions. Eepresen- tationa classified. As regards express stipulations the following points may be noted : A warranty may be either included in the contract of sale,' or may be given after the contract of sale is completed.^ Where a warranty is given after the contract of sale is completed, it must be supported by fresh consideration.^ The warranty in such case is a supplemental contract. In Scotland, consideration is not necessary to support a simple contract, so there a warranty might be added without fresh consideration. Any aiHrmation made at the time of sale may amount to a warranty provided it is intended as such — that is to say, if it is intended to form part of the contract.* If, however, the contract be reduced into writing, evidence of a contemporaneous verbal warranty would not be admissible.* A representation, anterior to the contract, does not con- stitute a warranty,^ though it may give rise to an action for deceit if made fraudulently. Eepresentations made during a contract of sale may be of four kinds : — 1. The representation may be a mere expression of opinion or mere commendation by the seller of his wares. It is then inoperative, for symplex commendaiio non oiligatJ 2. The representation may amount to a warranty. 3. The representation may constitute part of the description of the thing sold, or be an essential term of the contract. It is then a con- dition going to the root of the contract.* ' Bopltins V. Tanqueray (1854), 15 C. B. 130 ; 23 L. J. 0. P. 162 ; cf. Bannerman v. White (1861), 31 L. J. C. P. 28 ; Stucley v. Baily{l%&i), 31 L. J. Ex. 483. ' Boscorla v. Thomas (1842), 3 Q. B. 234; ef. Seilbutt v. Eickeon (1872), L. R. 7 C. P. 438. ' Boscorla v. Thomas (1842), 3 Q. B. 234 ; Benjamin on Sale, 4th ed., p. 608. ' Pasle^j V. Freeman (1789), 3 T. E. 51 ; 2 Smith, Lead. Cas., 9th ed., p. 87, per BuUer, J. ; Stucley v. Baily (1862), 31 L. J. Ex., at p. 489. • Earnor v. Groves (1855), 15 0. B. 667 ; aliter if the writing be a, mere memorandum of the contract; Allen v. Pink (1838), 4. M. & W. 140. » Eopkins v. Tanqueray (1854); 15 C. B. 130; 23 L. J. C. P. 162; but see Bannerman v. White (1861), 31 L. J. C. P. 28, where the representa- tion constituted the basis on which the parties subsequently entered into the contract. In such case the untruth of the representation may avoid the contract altogether. ' Benjamin on Sale, 4th ed., p. 610 ; Power v. Barham (1836), 4 A. & E. 473 ; cf. Charidelor v. Lopus (1603), 2 Oroke 2 ; 1 Smith, Lead. Cas., 9th ed., p. 186; Budd v. Fairmaner (1831), 8 Bing. 52; Bannerman V. White (1861), 31 L. T. Q. B. 28. » See sects. 11 to 15. CONDITIONS AND WARRANTIES. 23 4. The representation may be false and fraudulent. In that case, Sect. 10. •even if it only goes to part of the consideration, the contract may he avoided according to the rule Fraus omnia viiiat,^ and the person who makes it may be liable to exemplary damages — in some cases even when the party damnified was not a party to the contract.' 11. — (1.) In England or Ireland — (a.) Where a contract of sale is subject to any condition when con- to be fulfilled by the seller, the buyer may waive the ditiontobe condition, or may elect to treat the breach of such warranty. condition as a breach of warranty, and not as a ground for treating the contract as repudiated.^ (&.) Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the contract as repudiated, or a war- ranty, the breach of which may give rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract.* A stipulation may be a condition, though called a warranty in the contract : (c.) Where a coatract of sale is not severable,^ and the buyer has accepted the goods, or part thereof, or where the contract is for specific goods, the property in which has passed to the buyer, the breach of any ' Cf. Kennedy v. Panama Mail Co. (1867), L. E. 2 Q. B., at p. 587. « Levy V. Langridge (1838), 4 M. & W. 337, Ex. Oh. ; and see the note to Pasley v. Freeman, 2 Smith, L. C, 9th ed., p. 74. ' Mien V. Topp (1851), 6 Exoh, 424, at p. 431; Behn v. Burness (1862), 32 L. J. Q. B. 204, Ex. Ch. ; Benjamin on Sale, 4th ed., p. 546; and sect. 53, post, p. 98. ' Graves v. Legg (1854), 9 Exoh. 709; 28 L. J. Ex. 228; Belm v. Burness (1863), 32 L. J. Q. B. 201, at p. 205, Ex. Ch. ; Woolfe v. Home (1877), 2 Q. B. D., at pp. 360, 361. * As to severable contracts, see Simpson v. Crippen (1872), L. E. 8 •Q. B. 14 ; Brandt v. Lawrence (1876), 1 Q. B. D. 344 ; and sect. 31, post, J). 63. 24 THE SALE OF GOODS ACT, 1893. Sect. 11. condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated/ unless there be a term of the contract^ express or implied, to that effect.^ (2.) In Scotland, failure by the seller to perform any material part of a contract of sale is a breach of contract, which entitles the buyer either within a reasonable time after delivery to reject the goods and treat the contract as repudiated,* or to retain the goods and treat the failure to perform such material part as a breach which may give rise to a claim for compensation or damages. (3.) Nothing in this section shall affect the cas& of any condition or warranty, fulfilment of which is excused by law by reason of impossibility or otherwise.* See "warranty " defined in accordance with this section by sect. 62, post, p. 114. The Act throughout, so far as it relates to England, draws a dis- tinction between the terms " condition " and " warranty." This- distinction has often been insisted on, but seldom observed by judges and text writers. As used in the Act, " condition " is the equivalent of the old term " dependent covenant," while " warranty " is equiva- lent to the old term "independent covenant." See the question discussed at length in Note A, post, pp. 164, 168. In Scotland, no distinction has been drawn between conditions and warranties, and the right of rejection has been much larger than in. England. This right is preserved by the Act. On the other hand the actio quanti mmoris has been much restricted in Scotland, and when the buyer could returu the goods he has not been allowed to keep- ' Graves v. Legg (1854), 9 Exch. 709, at p. 717 ; 23 L. J. Ex. 228, at p. 231 ; Behn v. Burness (1863), 32 L. J. Q. B. 204, Ex, Oh. ; Seilbutt v.. Rickson (1872), L. K. 7 0. P., at p. 450 ; Benjamin on Sale, 4th ed., p. 450_ Kotes to Williams' Saunders ed. of 1871, vol. i. p. 554, cited in Seilbutt V. Hiclcson, suprk. " Bannerman v. Wliite (1861), 81 L. J. 0. P. 28. ' Couston v. Chapman (1872), L. E. 2 Sc. App. 254. * Bale V. Bawson (1858), 27 L. J. 0. P. 189, at p. 191 ; and see sects. 6 and 7, ante, p. 17 ; cf. Baily v. De Crespigny (1869), L. E. 4 Q. B., at p. 185. CONDITIONS AND WARRANTIES. 25 them and sue for damages. Now he has this right, hut it is safe- Sect. 11. guarded by sect. 59 (consignation into Court), post, p. 107. A party may always waive a stipulation which is for his own Waiver. benefit.! ijjje I.^lg jg Quilibit licet renunciare Juri pro se introdudo. Where the fulfilment of a condition by one party is prevented by the other the condition is waived." 12. — In a contract of sale, unless tlie circumstances of the implied contract are such as to show a different intention, there is — taking as (1.) An implied condition on the part of the seller tootle, &c. that in the case of a sale he has a right to sell the goods, and that, in the case of an agreement to sell, he will have a right to sell the goods at the time when the property is to pass : ^ (2.) An implied warranty that the buyer shall have and enjoy quiet possession of the goods : * (3.) An implied warranty that the goods shall be free from any charge or encumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made. See " warranty" and "contract of sale" defined by sect. 62 ; and as to the distinction between a condition and warranty, see sect. 11, and note thereto, and post, p. 168. As to negativing implied terms, see sect. 55, post, p. 103. Formerly the rule was stated to be that on a sale of specific goods there was no implied warranty of title, and that, in the absence of fraud, the seller was " not liable for a bad title unless there was an express warranty, or an equivalent to it by declaration or conduct." ' But as Lord Campbell said, in 1851, " the exceptions have well-nigh eaten up the rule ; " ' and Mr. Benjamin, after reviewing the whole of the cases, argues that the true rule is that stated iu the text. ' Leahe on Contracte, 3rd ed., p. 752. ' Maelcay v. Dick (1881), 6 App, Cas. 251 H. L. ' Benjamin on Sale, 4tb ed., p. 613; Eichliolz v. Bannister (1864), 34 L. J. C. P. 105 (goods sold by job-warehouseman); cf. French Civil Code, arts. 1603, 1625, 1626 ; Pothier, Contrat de Vente, No. 81 ; Indian Contract Act, 1872, § 109. * Ibid. ' Per Parke, B., in Morley v. Attenborough (1849), 3 Exch. 500, at p. 512 ; 18 L. J. Ex. 148, at p. 152 (auction sale of forfeited pledges). « Sims V. Marryat (1851), 17 Q. B. 281, at p. 291 (sale of copyright). 26 THE SALE OF GOODS ACT, 1893. Sect. 12. On a sale of leaseholds, which are chattels, there was always a warranty of title implied ; i and by sect. 7 of the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), which it is to he noted applies to " conveyances " of personalty, a covenant for title and quiet possession is always imported unless expressly negatived. The cases in which an implied warranty of title has been negatived appear all to have arisen out of sales by sheriffs or forced sales by public auction, where the circumstances were such as to indicate that the seller was only selling such right as he might have in the goods. A sheriff selling an execution debtor's goods gives no implied undertaking as to title.2 He is only responsible if he knows that he has n& title to seU.3 " According to the Eoman law," says Parke, B., " and in France and Scotland, and partially in America, there is always an implied contract that the vendor has the right to dispose of the subject which he sells."* But, strictly speaking, the implied engagement of the seller in French and Civil Law is not a warranty of title. It consists of (a) an obligation to deliver and (5) a guarantee against eviction. It is the equivalent of a covenant for quiet possession rather than the equivalent of a covenant for title.'' Mr. Benjamin suggested that in the case of breach of a warranty of title, the buyer might sue for unliquidated damages, and not merely recover the price, if paid, as on a failure of consideration ; but there appears to be no decision in point." Ttie Act iidopts this suggestion. freedom Before the Act there was probably an implied warranty on the part from Qf (.jjg geiigr tjiat the goods were free from any charge or lien thereon at ° ■ the time of sale, but there appears to be no English decision in point.'' In Scotland, France, and Italy, the implied warranty of freedom from ' Souter V. Drake (1834), 5 B. & Ad. 992. ' Exp. Hilars (1874), L. E. 9 Ch. App. 434, at p. 437; cf. Bankruptcy Act, 1883, s. 46 (3). = Peto V. Blaydes (1814), 5 Taunt. 657 (sale by sheriff's auctioneer). * Morley v. Attenborough (1849), 3 Exch., at p. 510, citing Domat, bk. i., tit. 2, s. 2, the French Civil Code, art. 1625 ; and as to Scotland, Sell on Sale, p. 94. = See Potliier, Contrat de Vente, Nos. 48, 82. ' Benjamin on Sale, 4th ed., p. 634. ■ Benjamin on Sale, 4th ed., p. 705; cf. Conveyancing Act, 1881, 8. 7, and see passim, Playford v. Mercer (1870), 22 L. T. N.s. 41 (goods to be taken " from the deck "). The stipulation, if implied, is a warranty, not a condition : see per Lord Esher in Sanders v. Maclean (1883), 11 Q. B D. at p. 337. CONDITIONS AND WARRANTIES, 27 ■encumbrance is clearly recogmsed.i " C'est une suite de I'obligation Sect. 12. ■de livrer la chose vendue," says Pothier, "que le vendeur doit faire I, ses frais ce qui est necessaire pour satisfaire £1, cette obligation. C'est pourquoi si la chose vendue se trouvait engag^e ^ quelque <;re'ancier du vendeur qui I'eut en sa possession le vendeur serait oblige de la degager k ses frais pour la livrer." He then proceeds to quote the Civil Law, and to give various other illustrations.^ 13. Where there is a contract for the sale of goods by Sale by de- description, there is an implied condition that the goods ^""p''""- shall correspond with the description ; ^ and if the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.* The principle is a universal one. Si oes pro auro veneat, non valet.^ Thus, where there was a contract to purchase rice to be shipped at Madras in March — ^ April, it was held that the buyer was not bound to accept a cargo of rice, part of which was shipped in February, and Lord Blackburn said, " If you contract to sell peas you ■cannot oblige a party to take beans. If the description of the article tendered is different in any respect it is not the article bargained for, and the other party is not bound to take it." " "Suppose," says Montague Smith, J., "a contract were made for the sale of ' ten casks of spirits ' guaranteed to be equal to a sample produced, with a stipulation for an allowance should the quality prove inferior to the guarantee, and the sample being brandy, the bulk ' Bell's Laio of Sale, pp. 79, 95 ; French Civil Code, arts. 1608, 1626, :and Italian Civil Code, arts. 1467, 1482. ^ Contrat de Vente, No. 42. ' JosUng V. Kingsford (1863), 32 L. J. 0. P. 94 (sale of oxalic acid after inspection and without warranty), approved ; Mody v. Oregson (1868), L. E. 4 Ex., at p. 56; Borrowman v. Drayton (1876), 2 Ex. D. 15, C. A. (cargo of petroleum) ; Randall v. Newson (1877), 2 Q. B. D., at p. 109, C. A. ; Bowes v. Shand (1877), 2 App. Cas. 455 ; Pollocli ore Con- tracts, 4th ed., p. 436. * Nichol V. Oodts (1854), 10 Exch. 191 (foreign refined rape oil); 23 L. J. Ex. 314; Az^mar v. Casella (1867), L. E. 2 C. P. 677, Ex. Ch. ; see at p. 678 (long staple Salem cotton). 5 Cited from Digest, in Kennedy v. Panama Co. (1867), L. E. 2 Q. B., at p. 588 (shares). " Bowes V. Shand (1877), 2 App. Cas. 455, at p. 480 (rice). 28 TEE SALE OF GOODS ACT, 1893. Sect. 13. Snie of laveat emptor. mplied onditions .s to tendered were to consist of rum, could the allowance clause be ap- plied?" and lie proceeds to show that the same rule must apply to cotton of a different kind (not quality) from the sample.^ Where, however, the article tendered answers to the description, the buyer must, apart from warranty, express or implied, take the risk as to its quality and condition.^ Where there was a. contract for the sale of Calcutta linseed, Willes, J., said, " The purchaser had a right to expect, not a perfect article, but an article which would be saleable in the market as Calcutta linseed. If he got an article so adulterated as not reasonably to answer that description, he did not get what he bargained for. As if a man buys an article as gold, which every one knows requires a certain amount of alloy, he cannot be said to get 'gold' if he gets an article so depreciated in quality as to consist of gold only to the extent of one carat." ^ Where the parties are agreed on the thing sold, a misdescription of it in the contract may be immaterial, for falsa demonstratio non nocet.^ This section must be read with sect. 14, which supplements it by dealing with the conditions and warranties implied by law. 14. Subject to the provisions of this Act and of any statute in that behalf,^ there is no implied warranty, or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows : — ^ (1.) Where the buyer, expressly or by implication, mates known to the seller the particular purpose • Azimar v. Casella (1867), L. K. 2 0. P., at p. 447. 2 Barr v. Gibson (18,38), 3 M. & W. 390 (ship); cf. Ward v. Hobhs (1878), 4 App. Cas. 13 (pigs sold with all faults). ' Wieler v. Schilizzi (1856), 17 C. B. 819 ; 25 L. J. 0. P. 89. * Budd V. Fairmaner (1831), 8 Bing. 48 ; Hopkins v. HitchcocTc (1863), 32 L. J. 0. P. 154 (iron with trade mark). = See, for example, the Chain Cables and Anchors Act, 1874 (87 & 38 Viet. 0. 51), s. 4; the Merchandise Marks Act, 1887 (50 & 51 Vict. 0. 28), s. 17; cf. the Sale of Food and Drugs Act, 1875 (38 & 39 Vict, c. 63). " Benjamin on Sale, 4th ed., p. 404; Barr v. Gibson (1838), 3 M. & W. 390 (ship sold at sea) ; Chanter v. Bopkins (1838), 4 M. & W. 399^ (smoke consuming furnace) ; Ormrod v. Huth (1845), 14 M. & W. 651, 663, Ex. Ch. (cotton); Horsfall v. Thomas (1862), 31 L. J. Ex. 322 (defective gun); Jones v. Just (1868), L. E. 3 Q. B. 197, at pp. 202-204; Ward V. Hobbs (1878), 4 App. Cas. 13, at p. 26. CONDITIONS AND WARRANTIES. 29 for ■vyhioh the goods are required, so as to show that Sect. i4. the buyer relies on the seller's skill or judgment, quaiitTor and the goods are of a description which it is in fitness, the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose,^ provided that in the case of a con- tract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose : ^ (2.) Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality ; provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed : ^ (3.) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.* ' Jones V. Bright (1829), 5 Bing. 533 (copper sheathing for vessel); Jones V. Just (1868), L. B. 3 Q. B., at p. 203 (manilla hemp); Randall V. Newson (1877), 2 Q. B. D. 102, 0. A., reviewing all the previous cases (oarriage-pole specially ordered for plaintiff's carriage). Cf. Drum- mond V. Van Ingen (1887), 12 App. Cas. 284, at p. 290, per Lord Herschell (-worsted coatings). ' Chanter v. EopUns (1838), 4 M. & "W. 399 (order for a known trade article) followed; OlUvant v. Bayley (1843), 5 Q. B. 288; 13 L. J. Q. B. 34. By sect. 115 of the Indian Contract Act, 1872, " Upon the sale of an article of a well-known ascertained kind there is no implied warranty of its fitness for any particular purpose." ' Jones V. Just (1868), L. E. 3 Q. B. 197 (contract for manilla hemp), reviewing all the previous cases ; Beer v. Walker (1877), 46 L. J. 0. P. 677 (rabbits); cf. Drummond v. Van Ingen (1887), 12 App. Oas. 284, at p. 290, per Lord Herschell; Jones v. Padgett (1890), 24 Q. B. D. 650 (blue cloth). ' Benjamin on Sale, 4th ed., p. 652; Jones v. Bowden (1813), 4 Taunt. 30 THE SALE OF GOODS ACT, 1893. Sect. 14. History of section. Caveat emptor. (4.) An express warranty or condition does not nega- tive a warranty or condition implied by this Act ^ unless inconsistent therewith. See the terms " buyer," " contract of sale," " quality," " seller," and " warranty " defined by sect. 62 ; and see " condition " and " warranty " contrasted by sect. 11, ante, p. 23. As to negativing a condition or warranty implied by law, see sect. 55, post, p. 103. This section was again and again considered and amended in Com- mittee, and finally settled by the Law Lords in its present form. Sub- sect. (2) was originally confined to cases where the buyer "had no- opportunity of examining the goods." The present narrower proviso was inserted in the Commons, and agreed to by the Lords with a verbal amendment. The clause originally provided in addition that where there was a contract for the sale of goods by a manufacturer, as such, there was an implied warranty that the goods were of the seller's own manufacture. This was the law in England,^ but not in Scotland. This provision was cut out by the Lords' Select Committee, perhaps on the ground that the Merchandise Marks Act, 1887, gave sufficient protection to- purchasers. The dicta in the decisions cited below must be carefully considered with reference to the language of the section, which probably narrows somewhat the already restricted rule of caveat emptor. The rule of caveat emptor probably owes its origin to the fact that in early times nearly all sales of goods took place in market overt.* Its policy has been defended on the ground that it tends to diminish litigation,* but the distinct tendency of modern cases is to limit its scope. In a case where a ship was bought while on a voyage, and had stranded, though she was not a total wreck. Lord Wensleydale says : " In the bargain and sale of an existing chattel, by which the property passes, the law does not, in the absence of fraud, imply any warranty of the good quality or condition of the chattel so sold." * 847; cf. Syerg v. Jonas (1848), 2 Exch. Ill (tobacco); Indian Contract Act, 1872, § 110. ' Bigge v. Parkinson (1862), 31 L. J. Ex. 301; if. Mody v. Gregson (1868), L. B. 4 Ex., at p. 53 (grey shirtings). " Johnson v. Baylton (1881), 7 Q. B. D. 438, C. A., Lord Bramwell dissenting. = Morley v. Attenborough (1849), 3 Exch., at p. 511, per Parke, B. * Mercantile Law Commission, 1855, 2nd Report, p. 10, ' Sarr v. Giftsom (1838), 3 M. & W. 390, at p. 399 ; but now the implied condition of fitness for a particular purpose may apply to specific goods. . CONDITIONS AND WARRANTIES. 3L And in a subsequent case Lord Blackburn gives the following illus- Sect. 14. tration : " Where a horse is bought Under the belief that it is sound, if the purchaser was induced to buy by a fraudulent representation as to the horse's soundness, the contract may be rescinded. If it was induced by an honest misrepresentation as to its soundness, though it may be dear that both vendor and purchaser thought that they were dealing about a sound horse, and were in error, yet the purchaser must pay the whole price unless there was a warranty ; and even if there was a warranty he cannot return the horse and claim back the whole price unless there was a condition to that effect in the contract." ^ In Jones v. Just, in 1868, where the previous cases were reviewed and classified, the Court say : " We are aware of no case in which the maxim caveat emptor has been applied where there has been no opportunity of inspection or where that opportunity has not been waived." ^ The most important exceptions to the rule are the implied conditions Exceptions of fitness for a particular purpose and merchantableness. In the first to caveat case in which implied conditions or warranties were distinguished from ^"^ '"^' false representations. Best, C.J., says : " It is the duty of the Court in administering the law to lay down rules calculated to prevent fraud, to protect persons necessarily ignorant of the qualities of a commodity they purchase, and to make it the interest of manufacturers and those who sell, to furnish the best article that can be supplied." ..." I wish to put the case on a broad principle. If a man sells an article he thereby warrants that it is merchantable — that is, fit for some pur- pose. If he sells it for some particular purpose he thereby warrants it fit for that purpose." 2 The implied terms of merchantableness and fitness for a particular purpose are nearly always spoken of as warranties, but in a recent case in the Court of Appeal, where it was held that the maker of a carriage-pole for the plaintiff's carriage was liable for a latent defect in it, they were clearly regarded as conditions forming part of the essential description in the contract. Lord Esher, in giving the judgment of the Court, says : " The fundamental undertaking is that the article offered or delivered shall answer the description of it contained in the contract. ... If the subject-matter be merely the commercial article or commodity, the undertaking is that the thing offered or delivered shall answer that description — that is to say, shall • Kennedy v. Panama Co. (1867), L. R. 2 Q. B., at p. 587 (shares). 2 Jones v. Just (1868), L. K. 3 Q. B., at p. 204 (manilla hemp). ' Jones V. Bright (1829), 5 Bing. 533, at p. 542 (action for deceit, but fraud negatived and warramty implied). 32 TEE SALE OF GOODS ACT, 1893. Sect. 14. be that article, saleable or merchantable. If the subject-matter be an article or commodity to be used for a particular purpose, the thing offered or delivered must answer that description — that is to say, it must be that article or commodity, and reasonably fit for the particular purpose. ... If the article or commodity does not in fact answer the description of it in the contract, it does not do so more or less because the defect in it is patent, or latent or discoverable." ^ It was formerly thought that where provisions were sold by a dealer in provisions there was always an implied condition or warranty that they were fit for food,^ but it was afterwards held that there was no distinction between provisions and any other goods. For instance, if a man selected and bought a carcase in the market he took it at his own risk.2 This class of case will require careful reconsideration with reference to sub-sect. (1), ante, p. 29. In Scotland formerly, as in Fiance now, it was held that the seller guaranteed the buyer against all latent defects.* But by sect. 6 of the Mercantile Law Amendment (Scotland) Act, 1856, it was provided that if the seller did not know the goods to be defective or of bad quality, the goods, with all faults, should be at the risk of the pur- chaser unless there was an express warranty or unless the goods were expressly sold for a particular and specified purpose. This enactment was intended to assimilate Scottish to English law, but it laid down a narrower rule for the former country. Now a uniform rule is laid down for both countries. ' / Sale hj Sample. 15. — (1.) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect. (2.) In the case of a contract for sale by sample — (a.) There is an implied condition that the bulk shall correspond with the sample in quality : ^ ' Bandall v. Newson (1877), 2 Q. B. D. 102, at p. 109, 0. A. (carriage pole). ' Benjamin on Sale, Ith ed., p. 672. ' Ibid., and Emmerton v. Matthews (1862), 31 L. J. Ex. 139 ; Smith V. Baiter (1878), 40 L. T. N.s. 261. But as to provisions bought by desoription, see Bigge v. Parlcinson (1862), 31 L. J. Ex. 301. * Bell's Prine. Law of Scotland, 9th ed., p. 78 ; French Oivil Code arts. 1641-1644. = Parker v. Palmer (1821), 4 B. & Aid. 387, at p. 391 (East India rice) ; Syers v. Jonas (1848), 2 Exoh., at p. 117 (tobacco) ; Carter v. Crick (1859)' 28 L. J. Ex. 238 (seed barley). SALE BY SAMPLE. 33 (i.) There is an implied condition that the buyer shall Sect. 15. have a reasonable opportunity of comparing the bulk with the sample : ^ (e.) There is an implied condition that the goods shall be free from any defect, rendering them un- merchantable, which would not be apparent on reasonable examination of the sample.^ Svi-sect. (1.) Evidence of usage is admissible to shew that a sale Sale by- was by sample though the written contract may be silent on the point.* sample. On the other hand, the exhibition of a sample during the making of the contract does not necessarily make it a contract for sale by sample.* " The office of a sample," says Lord Macnaghten, " is to present to the eye the real meaning and intention of the parties with regard to the subject-matter of the contract which, owing to the imperfection of language, it may be difficult or impossible to express in words. The sample speaks for itself. But it cannot be treated as saying more than such a sample would tell a merchant of the class to which the buyer belongs, using due care and diligence, and appealing to it in the ordinary way, and with the knowledge possessed by merchants of that class at the time." ' Sub-sect. (2.) By sect. 62,^osi,p. 113, "quality of goods "includes their Implied state or condition. As to negativing implied terms, see sect. 55, conditions. post, p. 103. In Parhinson v. Lee,' it was held that the seller, who ' Lorymer v. Smith. (1822), 1 B. & C. 1 (wheat); Benjamin on Sale, 4th ed., p. 592 ; Heilhutt v. Eickson (1872), L. E. 7 C. P., at p. 456 /shoes for French army); but see Heyworth v. Hutchinson (1867), L. K. 2 Q. B. 447 (wool). 2 EeObutt V. Hicksmi (1872), L. E. 7 C. P. 438, at p. 456; Oregson (1868), L. K. 4 Ex. 49 ; Drummond v. Van Ingen (1887), 12 App. Oas. 284 (worsted coatings) ; and see a Scotch case, Macfarlane v. Taylor (1868), L. E. 1 Sc. App. 245 (whiskey). ' Syers v. Jona$ (1848), 2 Exoh. Ill, approved Earner v. Groces (1855), 24 L. J. C. P., at p. 56. * Eill V. Smitn (1812), 4 Taunt. 520; see at p. 532 Ex. Oh. ; Meyer v. Mierth (1814), 4 Camp. 22; Gardiner v. Gray (1815), 4 Camp. 144; Benjamin on Sale, 4th ed., p. 641. 5 Drummond v. Van Ingen (1887), 12 App. Cas., at p. 297 ; of. Modi/ V. Gregeon (1868), L. K. 4. Ex., at p. 53, per Willes, J. « Parhinson v. JUe (1802), 2 East, 314 (hops). D 34 THE SALE OF GOODS ACT, 1893. Sect. 16. was a merchant and not the manufacturer, was not responsible for a latent defect which examination of the sample failed to disclose. Implied gut Lord Esher expressed an opinion that that case was no longer conditions , e i. on sale by law,i and the Act now draws no distmotion between a manutacturer sample. ^nd anybody else. Take the case suggested by Willes, J., namely " brandy sold by sample, coloured with some new stuff which turned out to be a violent purgative, but the effect of which could not be discovered by tasting in the usual way." ^ Should it be any answer to say the seller was a wine merchant and not the manufacturer ? Text writers and the older cases always speak of the term that the bulk shall agree with the sample as a warranty, collateral to the contract.* But Blackburn, J., in a case where goods were guaranteed " about equal to sample," says : " Generally speaking, when the contract is as to any goods such a clause is a condition going to the essence of the contract, but when the contract is as to specific goods the clause is only collateral to the contract, and is the subject of a cross action, or matter in reduction of damages." * Mr. Benjamin, after reviewing the cases, argues that the buyer may always reject the goods if the bulk do not correspond with the sample, unless (1) he has finally accepted them, or (2) the contract relates to specific goods the property in which has passed to him." The Act adopts this view by describing the term as a condition and not a warranty. See sect. 11 (1) (c), ante, p. 23. Prima facie the place of delivering is the place for comparing the bulk with the sample.® But this presumption may be rebutted, and Lord Esher has expressed the opinion that "such a contract always contains an implied term that the goods may under certain circumstances be returned, that such term necessarily contains certain varying or alternative applications, and amongst others the following, that if the time of inspection as agreed upon be subsequent to the time agreed for the delivery of the goods, or if the place of inspection as agreed upon be different from the place of delivery, the purchaser may, upon inspection at such time and place, if the goods be not equal • Sandall v. Newson (1877), 2 Q. B. D., at p. 106 (carriage pole). ' Mody v. Gregeon (1868), L. R. 4 Ex., at p. 53 (grey shirtings). ' Benjamdn on Sale, 4th ed., p. 640 ; Parker v. Palmer (1821), 4 B. & Aid., at p. 391, per Ld. Tenterden (Bast India rice). ■ ffeyworth v. Hutchinson (1867), L. R. 2 Q. B. 447, at p. 451 ; cf. '.rs V. Jonas (1848), 2 Bxoh. Ill, at p. 117, per Parke, B. Benjamin on Sale, 4th ed., p. 936. PerMns v. Bell (1893), 1 Q. B. 19.3, C. A (barley). SALE BY SAMPLE. 35 to sample, return them then and there on the hands of the seller." ^ Sect. 15. This certainly seems to be the law in Scotland," but the question perhaps requires further consideration in England. When the goods are speciflcally described by the contract, they must answer to their description as well as correspond with the sample. See sect. 13, ante, p. 27. Thus where there was a contract for foreign refined rape oil equal to sample, a tender of oil which was not foreign refined rape oil, though equal to sample, was held insufficient.* > Heilbutt V. Hickson (1872), L. E. 7 C. P. 438, at p. 456 ; r/. Grimoldby V. Wells (1875), L. R. 10 C. F. 391, at p. 395, per Brett, J. (tares). « Couston V. Chapman (1872), L. E. 2 So. App. 250, at p. 254, per Lord Chelmsford (wine sold by auction). ' Niehol V. Godtz (1854), 10 Exch. 191. D 2 36 TEE SALE OF GOODS ACT, 1893. PAET II. Sect. 16. Goods must be ascer- tained. Generic goods. Effects of the Conteact. Transfer of Property as between Seller and Buyer. 16. Where there is a contract for the sale of un- ascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained.^ " In the case of executory contracts," says Bovill, C. J., " where the goods are not ascertained or may not exist at the time of the contract, from the nature of the transaction, no property in the goods can pass to the purchaser by virtue of the contract itself ; but where certain goods have been selected and appropriated by the seller, and have been approved and assented to by the buyer, then the case stands as to the vesting of the property very much in the same position as upon a contract for the sale of goods which are ascertained at the time of the bargain." ' Unascertained or generic goods, that is to say, goods defined by description only, must be distinguished from specific goods, that is to say, goods identified and agreed upon at the time when the contract is made. Suppose A. agrees to sell to B. " fifty Southdown sheep," no property in any sheep can pass to B. till the sheep are appropriated to the contract. A. fulfils his contract by delivering at the appointed time any fifty Southdown sheep. But if he agreed to sell " the fifty ' For statement of rule, see Dixon v. Tates (1833), 5 B. & Ad., at p. 310 ; Aldridge v. Johnson (1857), 26 L. J. Q. B. 296, at p. 299, per Ld. Campbell; Mirdbita v. Imp. Ottoman Bank (1878), 3 Ex. D., at p. 172. For examples, see Bohde v. Thwaites (1827), 6 B. & C. 388, 393; Campbell V. Mersey Docks (1863), 14 0. B. N.s. 412; Jenner v. Smith (1869), L. E. 4 C. P. 270 ; cf. French Civil Code, art. 1585 ; Pothier, Contrat de Vente No. 308. ' " Seilbutt V. Eiclcson (1872), L. E. 7 C. P. 438, at p. 449, per Bovill, C.J., and Byles, J. TRANSFER OF PROPERTY. 37 Soutlidown sheep now in my field" he could not keep his contract Sect. 16. by delivering any others, and the property might pass at once if the parties so intended. An agreement for the sale of unascertained goods was known in Roman law as emptio generis} 17. — (1.) Where there is a contract for the sale of Property specific or ascertained goods the property in them is ^^l^ transferred to the buyer at such time as the parties to intended the contract intend it to be transferred.^ " ^^^^' (2.) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties, and the circum- stances of the case.^ By English law the property may pass by the contract itself, if such be the intention of the parties. In other words, the contract may include a conveyance. "Where, by the contract itself," says Lord Wensleydale, " the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to deUvery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee."* Whether this be a satisfactory expla- nation or not, the rule is undoubted, and is as old as the year books.^ By the Civil Law, the property in goods did not pass by virtue of Foreign a contract of sale until delivery, the rule being Traditionibus et rules. • Moyle's Sale in the Civil Law, p. 28, where the effects of this contract are discussed. ' Seath V. Moore (1886), 11 App. Cas. 350, at p. 370, per Ld. Blackburn, and at p. 880, per Ld. Watson ; cf. Shepherd v. Harrison (1871), L. E. 5H. L., atp. 127. = Ogg V. Skuier (1875), L. E. 10 C. P., at p. 162 ; cf. Young v. Matthews (1866), L. E. 2 C. P. 127. * Dixon V. Yates (1833), 5 B. & Ad. 313, at p. 340, per Parke, J. ' For a discussion of its policy, see 2nd Eeport of Mercantile Law Com- mission, 3855, pp. 9, 42; Blaclthurn on Sale, pp. 187-197; and for its history, see Cochrane v. Moore (1890), 25 Q. B. D. 57, C. A. tion. 38 TEE SALE OF GOODS ACT, 1893. Sect, 17. usucapionibus dominia rerum, non nvdis pactis, transferuntur.^ But though, the property did not pass, as soon as the parties were agreed on the subject-matter and the price, there was an emptio perfecta, the result of which was that the risk passed to the buyer, and he acquired a /ms ad rem, though not a jus in re. The Scotch common law followed this rule, but by the 19 & 20 Vict. c. 60, s. 1, when goods had been sold but not delivered, the seller's creditors could not attach them, and a sub-vendee was entitled to demand the goods subject to satisfying the seller's lien for the price. The effect was, that when in England the property in goods would pass to the buyer, the same results followed in Scotland, though those results were arrived at in a different manner.^ Now, under the Act, the same rule applies to both countries. France and Italy have also departed from the principle of the Civil Law, and have adopted a rule substantially the same as that of English law.' Rules for jg_ Unless a different intention appears,* the foUow- ascertain- . . ing inten- ing are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Bule 1. — Where there is an unconditional ^ contract for the sale of specific goods, in a deliverable state,® the property in the goods passes to the buyer when the contract is raade, and it is immaterial whether the time of payment or the time of delivery, or .]^th, be postponed.'' ' Moyle's Justinian, p. 200, citing Ood. 2, 3, 30. " M'Bain v. Wallace (1881), 6 App. Cas. 588, at p. 618 ; Seath v. Moore (1886), 11 App. Cas., at pp. 370, 380. See, too, Blacliburn on Sale, pp. 187-197. = French Civil Code, art. 1583; Italian Civil Code, art. 1448. For the iiistory of this departure, see VioUet, Eistoire du Droit Fran^aia, pp. 515-523. ' Blaelthum on Sale, pp. 147, 167 ; Calcutta Co. v. De Mattes (1863), 32 L. J. Q. B., at p. 329 ; Furl^ v. Bates (1863), 33 L. J. Ex. 53 ; Young v. Matthews (1866), L. B. 2 C. P. 127. ° As to contracts which are in terms conditional, see ante, pp. 1 and 5. " Deliverable state = state in which buyer is bound to accept. Blach- hurn on Sale, p. 152, and sect. 62, post, p. 116. ' Blaelcburn on Sale, pp. 147-150 ; Benjamin on Sale, 4th ed., p. 277 ; TBANSFEB OF PROPERTY. 39 Rule 2.— Where there is a contract for the sale of Sect. 18. specific goods and the seller is bound to do some- thing to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing be done,^ and the buyer has notice thereof. Btde 3. — Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test, or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing be done,^ and the buyer has notice thereof. Rule 4. — When goods are delivered to the buyer on approval or " on sale or return " or other similar terms the property therein passes to the buyer : — (a.) When he signifies his approval or acceptance to the seller, or does any other act adopting the transaction: * Tarling v. BaxUr (1827), 6 B. & C. 360 ; Tudoi's Merc. Cases, 3rd ed., p. 308, and notes; Dixon v. Yates (1833), 5 B. & Ad., at p. 3i0; Barr v. Qibson (1838), 3 M. & W. 390; Martindale v. Smith (1841), 1 Q. B., at p. 395; Gilmowr v. Su^pple (1858), 11 Moore, P. C, at p. 556 ; Joyce v. Swann (18G4), 17 C. B. N.S., at p. 102 (price not fixed) ; Sweeting v. Turner (1871), L. E. 7 Q. B. 310, at p. 313 ; Heilbutt v. Eichson (1872), L. E. 7 C. P., at p. 449. See the rule stated and contrasted \vith the Civil mw and Scotch common law; Seath v. Moore (1886), 11 App. Gas., at p. 370. ' JBlacJcburn ore Sale, p. 152; Eugg v. Minett (1809), 11 Bast, 210; Tansky v. Turner (1835), 2 Bing. N. C. 151 ; Laidler v. Burlinson (1837), 2 M. & W. 602 ; Acraman \. Morriee (1849), 8 C. B. 449 ; 19 L. J. 0. P. 57; Boswell v. Kilborn (1862), 15 Moore, P. 0. 309; 8 Jur. 443; Yoimg V. Matthews (1866), L. E. 2 O. P. 127 ; Pothier, Contrat de Vente, Nos. 308, 309; Anderson v. Morice (1875), L. E. 10 O. P. 609, at p. 618, Ex. Oh. aflarmed, 1 App. Gas. 713; Seath v. Moore (1886), 11 App. Gas., at p. 370. " Furley v. Bates (1863), 33 L. J. Ex. 43, criticising Blackburn on Sale, p. 152; Sanson v. Meyer (1805), 6 East, 614; Zagury v. FurneU (1809), 2 Camp. 239; Simmons v. Swiff (1826), 5 B. & C. 857; Pothior, Contrat de rente, Nos. 308, 309. ' Swain v. Shepherd (1832), 1 M. & Eob. 223; Blaelcburn on Sale, J). 167; Bell on Sale (Scotland), p. HI. 40 THE SALE OF GOODS ACT, 1893. Sect. 18. (6.) If he does not signify his approval or acceptance to the seller but retains the goods without giving ascertain- Dotice of rejection, then, if a time has been fixed lira!" ° for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reason- able time is a question of fact.^ Bule 5. — (1.) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer.^ Such assent may be express or implied, and may be given either before or after the appro- priation is made : ^ (2.) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee [or custodier] (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, ' Moss V. Sweet (1851), 16 Q. B. 493; 20 L. J. Q. B. 167; c/. Beverley V. Idneoln Gas Co. (1837), 6 A. & E. 829 ; Ex p. White (1870), L. E. 6 Ch. App. 397; Bay v. Ba/rker (1879), 4 Ex. D. 279, C. A.; ElpUck v. Banes (1880), 5 0. P. D. 321. ' For statement of principle, see Blaehhum on Sale, p. 127 ; Benjamin on Sale, 4th ed., p. 318 ; Heilbutt v. Hiehson (1872), L. R. 7 0. P., at p. 449. See, In illustration, Busk v. Davis (1814), 2 M. & S. 397; Bohde V. Thwaites ;(1827), 6 B. & 0. 388, see at p. 393 ; Aldrid^e v. Johnson (1857), 26 L. J. Q. B. 296 ; Langton v. Higgins (1859), 28 L. J. Ex. 252 ; BosweU V. Kittorn (1862), 15 Moore, P. G. 309 ; 8 Jur. 443. ' Campbell v. Mersey Doeks (1863), 14 0. B. N.s. 412, at p. 415, per Willes, J. ; cf. Godts v. Rose (1855), 17 0. B. 229, at p. 237 ; Aldridge v. Johnson (1857), 26 L. J. Q. B. 296 ; Jenner v. Smith (1869), L. E. 4 C. P. 270. TRANSFER OF PBOPERTT. 41 he is deemed to have unconditionally appropriated Sect. is. the goods to the contract.^ The term "custodier" is the Scotch equivalent of bailee. See " specific goods " and "future goods " and " deliverable state " defined by sect. 62, post, p. 109. As to generic goods, see ante, p. 36. As the English Courts have rejected the objective test of delivery for marking the time when the property is to pass, they have been forced to lay down more or less arbitrary rules for fixing the moment when the property is to be held to pass in cases where the parties have either formed no intention on the point, or failed to express it. Rule 1. — See note to last section, ante, p. 37. The first three rules deal only with specific goods. Rule 2. — The final words, " and the buyer has notice thereof," were Specific added in Committee on a suggestion from Scotland that it was unfair S°°^^- that the risk should be transferred to the buyer without notice. It is to be noted that this rule is negative. The case of an article, which the seller is to manufacture for the buyer, is sometimes treated as coming under this rule, but it generally comes under Rule 5. If a man orders a watch to be specially made for him, it is clear that the watchmaker may, if he likes, make two such watches, and that he keeps his contract by delivering either of them.^ Lord Wensleydale has pointed out that there may be an intermediate state of things. An article may be in course of manufacture, and the parties may have so far agreed upon it that there arises what the Eoman lawyers called an ohligatio certi corporis. The seller would break his contract if he delivered any other article, but there may be no intention that the property in it should pass before its completion.^ Unless a different intention be clearly shewn, the rule is that the property in an article. ' For statement of principle, see Wait v. Baher (1848), 2 Bxch., at p. 7, per Parke, B. ; Calcutta Co. v. Be Mattos (1863), 32 L. J. Q. B,, at p. 328, per Blackburn, J. ; Joyce v. Swann (1864), 17 C. B. n.s. 84, at p. 102, per Willes, J. As to delivery to buyer. Greaves v. Hepke (1818), 2 B. & Aid. 131 ; Ogle v. Atkinson (1814), 5 Taunt. 759. Delivery to carrier by land. Button v. Solomonson (1803), 3 B. & P. 582. To canal boat, Fra- gano v. Long (1825), 4 B. & C. 219 ; Bryans v. Nix (1839), 4 M. & W. 775 ; on board ship, Alexander v. Gardner (1835), 1 Bing. N. 0. 671 ; Tregelles v. Sewell (1862), 7 H. & N. 574, Ex. Ch. ; Mirabita v. Imperial Ottoman Bank (1878), 3 Ex. D. 164, C. A. 2 C/. Atkinson v. Bell (1828), 8 B. & 0. 277; and Xenos v. Wickham (1867), L. K. 2 H. L., at p. 316, per Willes, J. ' Laidler v. Burlimon (1837), 2 M. & W,, at p. 610 ; Wait v. Baker (1848), 2 Exch., at pp. 8, 9. 42 TEE SALE OF GOODS AOT, 1893. Sect. 18. which the seller is to mate or complete for the buyer, does not pass until the article is delivered in a finished state, or until it is ready for delivery and is approved by the buyer in that state.^ At one time the Courts seemed inclined to reverse the presumption in the case of shipbuilding contracts, where the ship was to be paid for by stated instalments as the work progressed ; ^ but in a recent case in the House of Lords it was held that there was no sound distinction between the case of a ship and any other corpus manufactum? Rule 3.— As to the concluding words, " and the buyer has notice thereof," see note to last rule. Lord Blackburn, in his work on Sale, states this rule without confining its operation to acts to be done by the seller, and regards it as a rule arbitrarily adopted from the Koman law, where it was a logical deduction from the principle that there could be no sale until the price was fixed. But the Court of Exchequer in 1863 reviewed the cases, and came to the conclusion that the rule should be qualified, as in the text, by confining it to acts to be done by the seller.* This construction brings the rule into line with Kule 2. ale or Sule 4. — This rule, like the others, is merely a primS, facie rule. In jturn, etc. some trades the usage is that when goods are delivered on fourteen days' approval, the property does not pass to the buyer on the expira- tion of that time, but the seller at any time after the fourteen days can call on the buyer either to take or to return the goods at once. When goods are sent on trial, or on approval, or on sale or return, the clear general rule is that the property remains in the seller till the buyer adopts the transaction," but it is quite competent to the parties to agree that the property shall pass to the buyer on delivery, but that, if he does not approve the goods, the property shall then revest in the seller.^ To use the language of the continental lawyers, the ' Clarice v. Spence (1836), 4 A. & B., at p. 466, reviewing the previous cases. As to an article commenced by one person and finished by another, see OldfieU v. Lowe (1829), 9 B. & C. 73, and ef. Beaumont v. Brengeri (1847), 5 C. B. 301. " Woods V. Bmsell (1822), 5 B. & Aid. 942; Ex p. lambton (1875), L. R. 10 Oh. App., at p. 414. ' Seath V. Moore (1886), 11 App. Cas., at pp. 370, 380 ; Story on Sale, § 316a. ' Furley v. Bates (1863), 33 L. J. Ex. 43, commenting on BlacUurn on Sale, p. 152. = Swain v. Shepherd (1832), 1 M. & Rob. 223 ; of. Be Jones (1889), 6 Morrell, at p. 197 ; of. Be'darride, Des Acliats et Ventes, § 156. « Cf. Head v. Tattersall (1871), L. R. 7 Ex. 7. The Roman law was similar ; see Moyle's Justinian, vol. i. p. 423. TBANSFEB OF PB0PERT7. 43 condition on which the goods are delivered may be either suspensive Sect. 18. or resolutive. Bute 5. — The term " future goods " includes goods to be acquired Generic and goods to be made by the seller after the formation of the contract goods- of sale. As to a special article to be made for the buyer, see note to Bule 2. As to a present sale of future goods, see sect. 5, ante, p. 16. When there is a contract for the sale of unascertained goods, and the goods are afterwards selected by the buyer, or if selected by the seller are approved by the buyer, no difficulty arises. The difficulty arises when the seller makes the selection pursuant to an authority derived from the buyer ; and it is often a nice question of law whether the acts done by the seller merely express a revocable intention to appropriate certain goods to the contract, or whether they shew an irrevocable determination of a right of election. " The general rule seems to be that when, from the nature of an agreement, an election is to be made, the party who is by the agreement to do the first act, which from its nature cannot be done tUl the election is determined, has authority to make the choice in order that he may perform his part of the agreement ; when once he has performed the act the choice has been made and the election irrevocably determined ; till then he may changehis mind as to what the choice shall be, for the agreement gives him till that time to make his choice." ^ The expression that the property in the goods passes by their " appropriation to the con- tract," though consistently used in the modern cases, is not a fortunate one. In the first place, as Lord Wensleydale has pointed out, the term is used in two senses. It may mean that the goods are so far appropriated that the seller would break his contract by delivering any other goods, though they still remain his property, or it may, and usually does, mean that the goods are finally appropriated to the con- tract so as to pass the property in them to the buyer.^ In the second place, if the decisions be carefully examined, it will be found that in every case where the property has been held to pass, there has been an actual or constructive delivery of the goods to the buyer. If the term " delivery " had been substituted for " appropriation," probably less difficulty would have arisen ; and it seems a pity that this was not done by the Act. The commonest form of appropriating goods to the contract is by delivering them to a carrier, and then, if there be • Blacliburn on Sale, p. 128, citing Heywood's Case, 2 Coke, 36, where it is said " the certainty and thereby the property begins by election." Cf. BanMn v. PotUr (1873), L. R. 6 H. L., at p. 119. = Wait V. Bdleer (1848), 2 Exoh., at p. 8, per Parke, B. • 44 THE SALE OF GOODS ACT, 1893. Sect. 18. authority to so deliver them, and the seller does not reserve the right of disposal, " the moment the goods which have been selected in pursuance of the contract are delivered to the carrier, the carrier becomes the agent of the vendee, and such a delivery amounts to a delivery to the vendee ; and if there is a binding contract between the vendor and the vendee, either by note in writing, or part payment, or subsequently by part acceptance, then there is no doubt that the property passes by such delivery to the carrier. It is necessary, of course, that the goods should agree with the contract." ^ The qualifying reference to the Statute of Frauds, of course, only applies where the value of the goods is £10 or upwards. Eeserva- 19. — (1.) Where there is a contract for the sale of right of specific goods or where goods are subsequently appro- disposai. priated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of dis- posal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee [or custodier} for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the con- ditions imposed by the seller are fulfilled.^ (2.) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is prima facie deemed to reserve the right of disposal.* (3.) Where the seller of goods draws on the buyer for ' Wait V. Baker (1848), 2 Exoh., at p. 8. ' For statement of principle, see MiraUta v. Imperial Ottoman Banh (1878), 3 Ex. D. 164. In illustration, see as to delivery to buyer, Brandt V. Bowlhy (1831), 2 B. & Ad. 932; Godts v. Bote (1855), 17 O.B. 229 ; 25 L. J. 0. P. 61. As to delivery on board ship. Wait v. Baiter (1848), 2 Exoh. 1 ; Van Casteel v. Boolcer (1848), 2 Exch. 691, 18 L. J. Ex. 9 ; Turner v. Liverpool Doohs (1851), 6 Exoh. 543, Ex. Oh. ; 20 L. J. Ex 293 ; Gabarron v. Ereeft (1875), L. E. 10 Ex. 274. = Ogg V. Shuter (1875), 1 0. P. D. 47, C. A. ; MiraUta v. Imperial Otto- man Bank (1878), 3 Ex. D., at p. 172, 0. A. See Joyoe v. Suann (1864), 17 0. B. N.s. 84, where inference was negatived. TBANSFEB OF PROPERTY. 45 the price, and transmits the bill of exchange and bill of Sect. 19. lading to the buyer together, to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him.^ In a case in the Court of Appeal, where the previous decisions were reviewed, Lord Bramwell seems to think that the seller may retain a jus disponendi, even when the property has passed to the buyer ; but Cotton, L. J., sums up the law as follows : " In the case of such a contract (i.e. a contract for the sale of unascertained goods), the delivery by the vendor to a common carrier, or, unless the effect of the shipment is restricted by the terms of the bill of lading, shipment on board a ship of, or chartered for, the purchaser is an appropriation sufficient to pass the property. If, however, the vendor, when shipping the articles which he intends to deliver under the contract, takes the bill of lading to his own owier, and does so not as agent, or on behalf of the purchaser, but on his own behalf, it is held that he thereby reserves to himself a power of disposing of the property, and that consequently there is no final appropriation, and the property does not on shipment pass to the purchaser. ... If the vendor deals with, or claims to retain the bill of lading, in order to secure the contract price, as when he sends forward the bill of lading with a bill of exchange attached, with directions that the bill of lading is not to be delivered to the purchaser till acceptance or payment of the bill of exchange, the appropriation is not absolute, but until acceptance of the draft, or payment or tender of the price, is conditional only, and until such acceptance or payment or tender, the property in the goods does not pass to the purchaser." ^ With reference to Lord Bramwell's doubt, it seems that, though the property in goods may be intended to pass to the buyer, they may be delivered to his agent on such terms as to prolong the right of stoppage in transitu, and in that sense a limited right of disposal may be said to be reserved.^ • Shepherd v. Earriem (1871), L. E. 5 H. L. 116, see at p. 133, per Lord Cairns. = Mirabita v. Imp. Ottoman Bank (1878), 3 Ex. D., at p. 172. See at p. 170, per Ld. Bramwell. Cf. Ex p. Banner (1876), 2 Ch. D. 278. ^ Cf. Sehotsmans v. Lancashire Railway (1867), L. K. 2 Ch. App., at p. 335. "^ 46 THE SALE OF GOODS ACT, 1893. Sect. 20. 20. Unless otherwise agreed,^ the goods remain at the ^. ■; : . seller's risk until the property therein is transferred to KiSK prima x x ./ ^ ^ n j facie passes the buyer, but when the property therein is transferred '^erty''" to *^^ buyer, the goods are at the buyer's risk whether delivery has been made or not.^ Provided that where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault.® Provided also that nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee [or custodier] of the goods of the other party.* " Custodier " is the Scotch equivalent of bailee. The expression " might not have occurred " was substituted for " would not have occurred" in the first proviso at the instance of Lord Watson. It shifts the onus on to the party in fault. " As a general rule," says Blackburn, J., " res perit domino, the old Civil law maxim, is a maxim of our law, and, when you can shew that the property passed, the risk of- the loss is prima fade in the person in whom the property is. If, on the other hand, you go beyond that, and shew that the risk attached to one person or the other, it is a very strong argument for shewing that the property was meant to be in him, but the two are not inseparable. . , . By the Civil law it was always considered that if there was any weighing, or anything of the • Martineau v. Kitehing (1872), L. E. 7 Q. B. 436 ; Castle v. Playford (1872), L. B. 7 Ex. 98, at p. 100, Ex. Ch. ; Anderson v. Morice (1875), L. E. 10 0. P. 609, at p. 619 ; affirmed 1 App. Gas. 713. " For examples of seller's risk, see Simmons v. Swift (1826), 5 B. & C. 857; Mead v. Taltersall (1871), L. E. 7 Ex. 7, see at p. 14; Elphiclc v. Barnes (1880), 5 C. P. D. 321, see at p. 326. For example of buyer's risk, see Bugg v. Minett (1809), 11 East, 210 ; Fragano v. Long (1825), 4 B. & 0. 219 ; Tarling v. Baxter (1827), 6 B. & C. 360 ; Tudor's Merc. Cases, 3rd ed., p. 308, and notes ; Sweeting v. Turner (1871), L. E. 7 Q. B. 310. = Marlineau v. Kitehing (1872), L. K. 7 Q. B. 436, 'at p. 456 ; per Black- burn, J. * Assumed in such cases as Head v. Tattersall and Mphich v. Barnes, suprk, but not expressly stated. TRANSFER OF PROPERTY. 47 sort which prevented the contract from being perfecla emptio, when- Sect. 20. ever that was occasioned by one of the parties being in mord, and it was his default, he shall bear the risk just as if there was emptio perfecta. That is good sense and justice, though not necessary to the decision of the present case." ^ The rule of the Civil law was Mora dehitoris non debet esse creditori damnosa. Pothier, in discussing it, says : " If I sell you a horse, and make default in delivery, and it is struck by lightning in my stables, the loss falls on me, because the accident would not have happened if I had duly delivered the horse. But if the horse dies from a disease, which would have killed him in any case, I am not liable." ^ The distinction drawn by Pothier has been adopted by arts. 1302, 1303 of the French Civil Code. When the seller remains in possession of the goods after the pro- perty in them has passed to the buyer, or when the buyer gets possession of the goods, before the property passes, as in the case of goods on trial, it seems clear the party in possession is in each case a, bailee. But there appears to be no decision defining the nature of such bailment. Pothier has discussed the position of the seller at some length.^ Until the time for delivery has arrived, he must use ordinary diligence in taking care of the thing sold. In contractibus in quibus ntriitsque contrahentis utilitas versatur, levis culpa, non etiam levissima, prssstatur. But, if the buyer makes default in taking delivery, the seller is only liable for dolus, which includes culpa lata or gross negligence. See, too, French Civil Code, arts. 1136-1138. Lord Blackburn's citation of the maxim Res perit domino is a little misleading as to the Roman law, because the law of sale formed an exception to the general rule. By Eoman law the property in goods did not pass until delivery, but as soon as the parties were agreed on the specific article, and the price, there was an emptio perfecta. The risk, unless otherwise agreed, passed to the buyer though the property did not. Cum autem emptio et venditio contracta sit periculum rei venditsB statim ad emptorem pertinet tametsi adhuc ea res emptori tradita non sit* The rule of Eoman law was followed in Scotland, and it may be stated broadly that when the facts would shew a bargain and sale in England passing the property and risk, in Scotland the buyer acquired a jus ad rem specificam, though not the property, and MaHineau v. Kitdhing (1872), L. K. 7 Q. B., at pp. 454, 456. Oontrat de Vente, No. 58 ; cf. Moyle's Sale in the Givil Law, p. 90. Contrat de Vente, Nos. 53-55 ; cf. Moyle's Sale in the Civil Law, p. 87. Moyle's Justinian, p. 420 ; Pothier, Contrat de Vente, Nos. 307-309. 48 THE SALE OF GOODS ACT, 1893. Sect. 20. the risk would be in him. Thus by different routes English and Scotch law arrived at practically the same results.^ The Act now lays down a uniform rule for both countries. This section is supplemented by the special provisions of sects. 32 (2) (3) and 33, post, p. 65, which deal with particular cases ; namely, goods sent by carriers by land or sea, and inevitable deterioration due to transit. Acces- The converse of the rule res perit domino also holds good, and any sories. fruits or increase of the thing sold belong to the party who has the property in it. " Any calamity befalling the goods after the sale is completed must be borne by the purchaser, and, by parity of reasoning, any benefit to them is his benefit, and not that of the vendor."^ Transfer of Title. Sale by 21. — (1.) Subject to the provisions of this Act,* where the owner, goo^s are soM by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had,* unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell.* (2.) Provided also that nothing in this Act shall affect — » Bell's Pnn. Law of Seotland, §§ 87, 88. ' Sweeting v. Turner (1871), L. K. 7 Q. B. 310, at p. 313, per Black- burn, J. ; French Civil Code, arts. 1614, 1615 ; Dig. 19, 1, 13. ' See sects. 22 to 25, post, p. 51. * For principle, see Colonial Bank v. Whinney (1886), 11 App. Cas. 426, at pp. 435, 436, per Lord Blackburn. For illustrations, see Cooper y. Wil- lomatt (1845), 1 C. B. 672 ; 14 L. J. C. P. 219 ; Langton v. Biggins (1859), 28 L. J. Ex. 252 (wrongful resale by seller in possession, which must henceforth be taken subject to s. 8 of the Factors Act, 1889) ; Lee v. Bayet (1856), 18 0. B. 599 ; 25 L. J. 0. P. 249 (stolen goods sold by auction); the Tdegrafo (1871), L. B. 3 P. C, at p. 685 (goods taken piratically); Hollint y. Fowler (1875), L. E. 7 H. L. 757; Gundy v. Lindsay (1878), 3 App. Oas. 459 (goods obtained by fraud and resold); ef. Indian Contract Act, 1872, s. 108. » Piekard v. Sears (1837), 6 A. & E. 469 ; Gregg v. WelU (1839), 10 A. A E. 90 ; Freeman v. Coolte (1848), 2 Exoh. 654 ; 18 L. J. Ex. 114 ; Knights v. Wiffen (1870), L. E. 5 Q. B. 660 ; ef. Seton v. Lafone (1887), 19 Q. B. D. 68, C. A. TRANSFEB OF TITLE. 49 (a.) The provisions of the Factors Acts, or any Sect. 21. enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof ; ^ (6.) The validity of any contract of sale under any special common law, or statutory, power of sale, or under the order of a court of competent juris- diction.^ Sub-sect. (1). " The general rule of law," says Willes, J., " is un- doubted, that no one can transfer a better title than he himself possesses. Nemo dot quod non haibet." ^ In a case under the Factors Act, 1842, Blackburn, J., says : " At common law a person in possession of goods could not confer on another, either by sale or by pledge, any better title to the goods than he himself had. To this general rule there was an exception of sales in market overt (sect. 22), and an apparent exception where the person in possession had a title defeasible on account of fraud (sect. 23, post, p. 52). But the general rule was that, to make either a sale or a pledge valid against the owner of the goods sold or pledged, it must be shewn that the seller or pledger had authority from the owner to sell or pledge, as the case might be. If the owner of the goods had so acted as to clothe the seller or pledger with apparent authority to sell or pledge, he was at common law precluded, as against those who were induced bond fide to act on the faith of that apparent authority. ' See the Factors Act, 1889, post, p. 118 ; and the Factors (Scotland) Act, pott, p. 135 ; and see the Bills of Lading Act (18 & 19 Vict. 0. Ill) ; the Bankruptcy Act, 1883, s. 44 (reputed owuership), and for certain purposes the Bills of Sale Act, 1878 ; cf. Indian Contract Act, 1872, s. 108. « As to pawnee, see MaHinv. Reid (1862), 31 L. J. 0. P. 126, at p. 128, per Willes, J. ; Pigot v. Oubley (1864), 33 L. J. C. P. 134. As to distrainor, see Woodfall's Landlord and Tenant, 13th ed., pp. 479-481. As to sheriff, see Doe v. Donston (1818), 1 B. & Aid. 230 (sale after expiration of office) ; cf. Batchelor v. Vyse (1834), 4 M. & Sc. 552 (excessive sale) ; Manders v. Williams (1849), 4 Exoh. 339 ; 18 L. J. Ex. 437 (goods on sale or return). As to master of ship. Page v. Cowasjee (1866), L. K. 1 P. C, at p. 144, and Kaltenbach v. Mackenzie (1878), 3 C. P. D., at p. 473. As to order of Court, see K. 8. C. Or. L. rule 2. As to goods left with innkeeper, see 40 & 41 Vict. c. 38. ' Whistler v. Forster (1863), L. J. 0. P. 162, at p. 164. E 50 TEE SALE OF GOODS ACT, 1893, Sect. 21. Sale by person not the owner. Special power. Conflict of laws . Joint owners. from denying that he had given such an authority, and the result as to them was the same as if he had really given it. But there was no such preclusion as against those who had notice that the real authority was limited." ^ The rule of the civil law seems to have been in accord with the common law. Nemo plus jwris in aUum transferre potest quam ipse habet ; or as Ulpian puts it, with special reference to the law of sale, Bern alienam distrahere quern posse nulla dubitatio est nam emptio est et venditio ; sed res emptori auferri potest. See Pothier, Contrat de Vente, No. 7. By art. 1599 of the French Civil Code, " La vente de la chose d'autrui est nulle ; " but this provision must be read subject to art. 2279, which provides that, " En fait de meubles possession vaut titre." There are special provisions about lost or stolen goods, but, with these exceptions, it seems that an innocent purchaser of goods is always protected. Sub-sect. (2). One person is sometimes invested by law with a special power to dispose of another person's property. Tor instance, a pawnbroker may sell unredeemed pledges ; and a landlord, who has duly distrained for rent, may sell the goods so distrained. So, too, the master of a ship may, in case of necessity, dispose of the ship and cargo. See the authorities collected in the footnote to (2) (6), ante, p. 49. An English statute only operates in the United Kingdom, so sales in foreign countries are in general regulated by the law of the country where the sale takes place. Subject to certain qualifications, the rule is that if personal property be disposed of in a manner binding accord- ing to the law of the country where it is, that disposition is binding everywhere. Thus where the master of a ship wrongfully sold the cargo by auction in Norway, but under such circumstances as to give a good title in Norway, the sale was held valid, although the cargo subsequently came to England.^ Locus regit actum is a rule of wide application. By sect. 108 (2) of the Indian Contract Act, 1872, " If one of several joint-owners of goods has the sole possession of them by the permis- sion of the co-owners, the ownership of the goods is transferred to any person who buys them of such joint-owner in good faith, and under ' Cole V. North Weetern Sank (1875), L. B. 10 0. P. 354, at p. 362 ; approved Colonial Sank v. Whinney (1886), 11 App. Oas. 426, at pp. 435, 436 (reputed ownership) ; ef. City Bank v. Barrow (1880), 5 App. Gas., at p. 677, as to Roman and old French law, and Canadian law. ' CammeU v. Sewell (1860), 29 L. J. Ex. 350, Ex. Ch. ; Westlake's Private International Law, 3rd ed., p. 181. TRANSFER OF TITLE. 51 circumstances which are not such as to raise a reasonable presumption Sect. 21. that the person in possession of the goods has no right to sell them." Probably, in England, a joint owner, in the absence of estoppel or authority from the other co-owners, could only transfer his own share.^ 22. — (1.) Where goods are sold in market overt, Market according to the usage of the market, the buyer acquires °^"'' a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.^ (2.) Nothing in this section shall affect the law Horses. relating to the sale of horses.^ (3) The provisions of this section do not apply to Scotland. The rules of market overt do not apply in Scotland or the United States, and in England they only apply to a limited class of retail transactions. All shops in the city of London are market overt, for the purposes of their own trade, but a wharf in the city is not market overt,* and a sale by sample is not within the custom because the whole transaction must take place in the open market, and not merely the formation of the contract.^ So, too, a sale of jewelry to a trades- man in Ms show-room is not within the custom.* Outside the city of London markets with the custom of market overt may exist either by grant or prescription, but it seems that the custom does not apply to a market established by a local Act.' • Cf. Ex p. Barnett, Re Tamplin (1890), 7 Morrell, 70. As to partners, ■who prima fade are agents for each other, see Folloelc on Partnership, 5th ed., pp. 31, 32. ' The Case of Market Overt (1596), 5 Coke E. 83 b ; Tudor's Mere. Cases, 3rd ed., p. 274, and notes; Cramer. London Dock Co. (1864), 33 L. J. Q. B. 224 ; see per Blackburn, J., at p. 229, as to the usage of the market ; Benjamin on Sale, 4th ed.,p. 9; cf. Vilmont v. Bentley (1886), 18 Q. B. D. 322, at p. 331. ' See the 2 & 3 Phil. & Mar. o. 7, and 31 Eliz. o. 12, set out, post, p. 136 ; also Moran v. Pitt (1873), 42 L. J. Q. B. 47. The practical effect of these Acts is to take horses out of the rule as to market overt. * Wilkinson v. King (1809), 2 Camp. 335. » Crane v. London Dock Co. (1864), 33 L. J. Q. B. 224. » Hargreave v. Spink (1891), 1 Q. B. 25. ' Cf. Moyce v. Newington (1878), 4 Q. B. D., at p. 34, per Cookburn, C.J.; and see Lee v. Bayes (1856), 18 C. B. 599; 25 L. J. C. P. 249 (sale by auction at horse repository). E 2 52 TEE BALE OF OOODS ACT, 1893. Sect. 22. Sect. 24 is not in the nature of an exception or proviso to this sec- tion. When stolen goods are sold in market overt, the property passes to the buyer, though on the conviction of the thief the property revests in the original owner by force of the statute (24 & 25 Vict. c. 96, s. 100). Hence an intermediate purchaser incurs no liability ; ^ so, again, the buyer who is dispossessed cannot charge for the keep ol the goods, for they were his own till the statute revested them in the original owner.^ Sale under 23, When the seller of goods has a Toidable title title* ^ thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller's defect of title.® See "good faith" defined by sect. 62, post, p. 115. Many of the cases covered by this section would also fall within sect, 25,^os^, p. 54. Where goods have been obtained by means amounting to larceny, the thief has.no title, and can give none, except by selling in market overt ; but where goods have been obtained by fraud the person who has so obtained them may either have no title at all, or a voidable title, according to the nature of the transaction. If the nature of the fraud be such that there never was a contract between the parties, as, for instance, if A. obtains goods from B. by falsely pretending to be X., then the person who so obtains the goods has no title at all and can give none.* But if the person defrauded really intended to part with the property in, and possession of the goods, although induced to do so by fraud, there is a contract which he may affirm or disafSrm at his election." Hence, the person who obtains the goods has a voidable > Em-wood V. Smith (1788), 2 T. E. 750 ; cf. Vilmont v. Sentky (1886),. 18 Q. B. D. 322, at p. 331. ' Walker v. MaWiews (1881), 8 Q. B. D. 109. ' White V. Garden (1851), 10 0. B. 919; 20 L. J. 0. P. 166 ; Kingafm-d V. Merry (1856), 25 L. J. Ex. 166, reversed on another ground, 26 L. J. Ex. 83; Peaee v. Gloaheo (1866), L. R. 1 P. 0. 219, at pp. 229, 230; Gundy V. Lindsay (1878), 3 App. Cas. 459, at p. 464, per Lord Cairns ; Polloclc on Possession, pp. 203, 204. * Biggons v. Burton (1857), 26 L. J. Ex. 342 ; Eardman v. Sooth (1863),. 32 L. J. Ex. 105 ; Cundy v. Lindsay (1878), 3 App. Oas. 459 ; Polloclc on Possession, p. Ill ; Exp. JBarnett (1876), 3 Ch. D. 123. = aough V. Land, and N. W. Railway (1871), L. E. 7 Ex. 2G. TRANSFER OF TITLE. 53 title, and can give a good title to an innocent purchaser while the Sect. 23. matter is in suspense. "If," says Lord Cairns, " the chattel has come into the hands of the person who professed to sell it, by a defoicto contract, that is to say, a contract which has purported to pass the property to him from the owner of the property, then the purchaser will obtain a good title, even although afterwards it should appear that there were circumstances connected with that contract which would enable the original owner of the goods to reduce it, and set it aside." i 24. — (1.) Where goods have been stolen and the offender Revesting . . , . , J °^ property IS prosecuted to conviction, the property m the goods in stolen, so stolen revests in the person who was the owner &c., goods ^ _ on convic- of the goods, or his personal representative, notwith- tionof standing any intermediate dealing with them, whether ^"g"^ by sale in market overt, or otherwise.^ 25 vict. (2.) Notwithstanding any enactment to the contrary, ^" ^^ where goods have been obtained by fraud or other post, p. wrongful means not amounting to larceny, the property in such goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender. (3.) The provisions of this section do not apply to Scotland. The rule, that on tlie conviction of the thief the property in stolen goods revested in the original owner, is as old as the 21 Hen. VIII. c. 11, which was perhaps declaratory. The effect of sect. 100 of the Larceny Act, 1861 (24 & 25 Vict. c. 96), was to extend the rule to all offences under that Act. The operation of the extended rule to cases where goods had been obtained by false pretences, but under a de facto contract, was anomalous, and was regretted by the Lords in Bentley v. Vilmont? Sub-sect. (2) was accordingly introduced as • Cundy v. Lindsay (1878), 3 App. Oas., at p. 464. 2 Benjamin on Sale, 4th ed., pp. 11, 12 ; Stone's Justices' Manual, 24th ed., p. 782; Eorwood v. Smith (1788), 2 T. E. 750; Scattergood v. Sylves- ter (1850), 15 Q. B. 506 ; 19 L. J. Q. B. 447. » Vilmont v. Bentley (1886), 18 Q. B. D. 322, C. A. ; affirmed Bentley v. 162.] 54 THE SALE OF GOODS ACT, 1893. Sect. 24. Seller in possession after sale. [62 & 53 Vict. c. 45. s. 8.] Buyer in possession. [52 & 53 Vict. c. 45, s. 9.] an amendment in Committee. Jts effect is to restore the old state of the law and to override sect. 100 of the Larceny Act, 1861, so far as it relates to offences other than offences amounting to larceny. Sect. 100 of the Larceny Act, 1861 {post, p. 152), enables the con- victing Court to make an order for restitution ; but, as the effect of the statute is to revest the property, the original owner has his ordinary legal remedies without resorting to this special one. It is to be noted that the rule laid down in this section is not strictly an exception to the rule laid down in sect. 22 (ante, p. 51). By a sale in market overt, the property in the goods really vests in the buyer, though on conviction of the offender it revests in the original owner by force of the statute. Hence, if the goods pass through several hands, intermediate parties are not guilty of a conversion. By art. 2279 of the French Civil Code, lost or stolen goods may be recovered by the true owner at any time within three years, but hy art. 2280, if the actual possessor obtained them at a public auction or by a sale in the ordinary course of business, the original owner can only get them back on paying the possessor the sum he gave for them. 25. — (1.) Where a person, having sold goods, continues, or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same. (2.) Where a person, having bought or agreed to buy goods, obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title, Yilmont (1887), 12 App. Cas. 471, overruling Moyee v. Newington (1878), 4 Q. B. D. 32. TEANSFEB OF TITLE. 55 under any sale, pledge, or other disposition thereof, to Sect. 25. any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner. (3.) In this section the term " mercantile agent " has the same meaning as in the Factors Acts. By sect. 62, post, p. Ill, " Factors Acts " mean the Factors Act, 1889, and the Factors (Scotland) Act, 1890, whicli are set out, post, p. 118, and " document of title " has the same meaning as in those Acts. For definitions of " document of title " and " mercantile agent " by the Factors Acts, see post, pp. 119, 121. This section reproduces, with a slight modification, sects. 8 and 9 of the Factors Act, 1889, which came into operation on the 1st of January, 1890. See post, p. 128, where the effect of these provisions is considered. As regards questions arising before the 1st of January, 1890, see sects. 3 and 4 of the Factors Act, 1877 (40 & 41 Vict. c. 39), which were more limited in their scope, inasmuch as they referred only to dealings with the documents of title to goods, and not to dealings with the goods themselves. It was originally intended to repeal the sections which are here reproduced, but they were omitted from the repeals at a late stage for consultation with the draftsman of the Factors Act. If not wanted they can be repealed by a Statute Law Revision Act. 26. — (1.) A writ of fieri facias or other writ of execu- sfeect of tion against goods shall bind the property in the goods ^g'„°j^jj of the execution debtor as from the time when the writ [29 Car. 2, is delivered to the sheriff to be executed ; and, for the ''" " ^' '^ better manifestation of such time, it shall be the duty of the sheriff, without fee, upon the receipt of any such writ to endorse upon the back thereof the hour, day, month, and year when he received the same. Provided that no such writ shall prejudice the title to 56 TEE SALE OF GOODS ACT, 1893. Sect. 26. such goods acquired by any person in good faith and for ri9"&To valuable consideration, unless such person had at the Vict. c. 97. time when he acquired his title notice that such writ / ■^ or any other writ by virtue of which the goods of thel execution debtor might be seized or attached had been delivered to and remained unexecuted in the hands of i the sheriff. (2.) In this section the term "sheriff" includes* any officer charged with the enforcement of a writ of execution, (3.) The provisions of this section do not apply to . Scotland. ' The first paragraph of this section reproduces sect. 15 of the Statute of Frauds with the addition that the sheriff is required to indorse the hour on the writ, but this accords with the practice. The second paragraph reproduces sect. 1 of the Mercantile Law Amendment Act, 1856. Both these enactments are now repealed. Sect. 1 of the Mercantile Law Amendment Act, 1856 (19 & 20 Vict, c, 97), was in the nature of a proviso to sect. 15 of the Statute of Frauds.! It was enacted to carry out a recommendation of the Mercantile Law Commission, 1855, and to assimilate English to Scotch law in this respect. See Second Eeport, p. 8. It has been held that the words, " shall bind the property in the goods," do not prevent the property from passing by the sale, but constitute the execution a charge upon the goods.^ Compare the definition of sheriff given by sect. 168 of the Bank- ruptcy Act, 1883, and see the saving for the bankruptcy Isms,. vast p. 108. ' Sect. 15 of the Bevised Edition is commonly cited as sect. 16. ' Woodland v. Fuller (1840), 11 A. & E. 849 ; see at p. 867. ( 57 ) PART III. Peefoemakcb of the Conteact. 27. It is the duty of the seller to deliver the goods, Sect. 27. and of the buyer to accept and pay for them, in accord- j)„^~f ance with the terms of the contract of sale.^ seller and buyer. See " delivery " defined, post, p. 109. " In every contract of sale," says Watson, B., " there is involved a contract on the one side to accept, and on the other to deliver." " If," says Martin, B., in the same case, " one buys goods of another in the possession of a third party, the vendor undertakes that they shall he delivered in a reasonable time. ... If I buy a horse of you in another man's field, it is part of the contract that if I go for the horse I shall have it." ^ The general obligation to deliver may, however, be modified by the terms of the contract. As Lord Blackburn says, there is no rule of law to prevent the parties from making whatever bargain they please.^ Thus, where the seller gives the buyer a delivery order for the goods it may be a condition that the order should be given up to the warehouseman before the buyer can get the goods.* Again, a man with his eyes open may buy the chance of obtaining goods and not the goods themselves: see sect. 5 (2), ante, p. 15 (sale of expectancy), and sect. 12, ante, p. 25 (warranty of title). French ' BuddU V. Green (1857), 27 L. J. Ex. 33 ; Woolfe v. Home (1877), 2 Ford v. Tates (1841), 2 M. & Gr. 549, as explained, LqcTcett v. NicTcUn (1848), 2 Bxoh. 93; 19 L. J. Ex. 403. * Ellis V. Thompion (1838), 3 M. & W. 445, see at p. 456, per Alder- son, B. 60 TEE SALE OF GOODS ACT, 1893. Sect. 29. his behalf;^ provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods.^ (4.) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour.* What is a reasonable hour is a question of fact. (5.) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller. See " delivery " defined by sect. &2,post, p. 109, and " specific goods," post, p. 114, and " deliverable state," post, p. 116. As to negativing implied terms, see sect. 55, post, p. 103. The delivery of the key of the place where the goods are may, by agreement, operate as a delivery of the goods.* Place of Sub-sect. (1.) This sub-section was much considered and several iehvery. times altered in Committee. The first part deals incidentally with the mode of delivery, and the second part with the place of delivery. As regards mode of delivery there was very little authority, but the assumed rule was, that it was for the buyer to take delivery, and that in the absence of any different agreement, the duty of the seller to deliver was satisfied by his affording to the buyer reasonable facilities for taking possession of the goods at the agreed place of delivery." It seems a pity that a more definite prima facie rule has not been laid down by the Act. As regards place of delivery, there was no authority in point, and » Fanna v. Home (1846), 16 M. & "W. 119 (see at p. 123); Godts v. Base (1855), 17 0. B. 229 ; 25 L. J. C. P. 61 ; Siiddle v. Green (1857), 27 L. J. Ex. 33 ; PoUooh on Possession, p. 73. ' See the Bills of Lading Act, 1855 (18 & 19 Vict. c. Ill), post, p. 149 ; and the Factors Act, 1889, post, p. 118 ; and sects. 25 and 47. » Startup V. Macdonald (1843), 6 M. & Gr. 593 Ex. Ch. " Mlis V. Sunt (1789), 3 T. E. 464; Chaplin v. Sogers (1800), 1 East, 192 ; Elmore v. Stone (1809), 1 Taunt. 458 ; cf. Ancona v. Sogers (1876), 1 Ex. D. 285, at p. 290, C. A. See Milgate v. KehhU (1841), 3 M. & Gr. 100 (delivery of key not delivery of goods) ; and see the whole question of so-called symbolic delivery discussed in Pollock on Possession, pp. 61- 70 ; cf. French Givil Code, art. 1606 ; and see post, p. 110. * Cf. Wood V. Tassell (1844), 6 Q. B. 234; Smith v. Chance (1822), 2 B. & Aid., at p. 755; Salter v. Woollams (1841), 2 M. & Gr. 650, as explained, Benjamin oji Sale, 4th ed., p. 683. PERFORMANCE OF TEE CONTRACT. 61 text writers seem to Lave followed Potliier, who says, "S'il n'y a point de lieu exprim^, la livraison doit se faire au lieu oil est la chose; c'est a I'acheteur de I'envoyer chercher." i The Act adopts a rule which is more in accordance with ordinary practice, and which in substance is the rule laid down by Art. 342 of the German Com- mercial Code. Sub-sect. (2.) In a contract for goods to be delivered " as required," the buyer must require delivery within a reasonable time, but the seller cannot rescind the contract on the ground of delay without givmg the buyer notice. "No doubt," says Pollock, C.B., "where a contract is silent as to time, the law implies that it is to be performed within a reasonable time ; but there is another maxim of law, viz., that every reasonable condition is also implied, and it seems to me reasonable that the party who seeks to put an end to a contract, because the other party has not, within a reasonable time, required him to deliver the goods, should in the first instance inquire of the latter whether he means to have them." ^ Sub-sect. (3.) As regards documents of title, the common law drew a hard and fast distinction between bills of lading and other docu- ments. The lawful transfer of a bill of lading was always held to operate as a delivery of the goods themselves, because, while goods were at sea they could not be otherwise dealt with.^ But the transfer of a delivery order or dock warrant operated only as a token of authority to take possession, and not as a transfer of possession ; * and, as between immediate parties, there is nothing to modify the common law rule. If, however, a buyer or mercantile agent, who is lawfully in possession of any document of title to goods, transfers it for value to a third person, the original seller's rights of lien and stoppage in transitu are thereby defeated (see Factors Act, 1889, post, p. 118, and sects. 25 and 47 of this Act). Sub-sect. (4.) This sub-section alters the law in so far as it makes the question what is a reasonable hour a question of fact. It was formerly a question of law, and some highly technical rules for deter- mining it were laid down by Lord Wensleydale.* Sub-sect. (5.) This is declaratory. " There is no implied contract," fays Story, " that the vendee shall pay the vendor for any services in Sect. 29. Delivery as required. Goods la possession of third person. Hours for delivery. Expenses of delivery. • Contrat de Vente, No. 52 ; and see French Civil Code, art. 1609. « Jones V. Gibbons (1853), S Bxch. 920, at p. 922. ' Sanders v. Maclean (1883), 11 Q. B. D., at p. 34], per Bowen, L. J., and notes to Lickbarrow v. Mason, 1 Smith Lead. Cas., 9th ed., p. 737. * Blackburn on Sale, p. 302 ; M'Ewan v. Smith (1849), 2 H. L. Cas. 309. = Startup V. Macdonald (1843), 6 M. & Gr. 593 Ex. Oh. 62 TEE SALE OF GOODS ACT, 1893. Sect. 29. relation to the property rendered previous to the completion of the sale by delivery." ^ The rule seems a general one. By art. 1608 of the French Civil Code, " Les frais de la d^livranoe sont 4 la charge du vendeur, et ceux de I'enUvement k la charge de I'acheteur, s'il n'y a eu stipulation contraire." Delivery of 30. — (1.) Where the seller delivers to the buyer a Tuantlty. quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts the goods so delivered he must pay for them at the contract rate.2 (2.) Where the seller delivers to the buyer a quantity ■ of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate.^ (3.) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the con- tract and reject the rest, or he may reject the whole.* (4.) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties. As the seller does not fulfil his contract by delivering a less quantity than he contracted to sell, so, conversely, " if a man contracts ' Story on Sale, § 297a. ' Shipton V. Cauon (1826), 5 B. & C. 378, at p. 382 (bark); Oxendale V. Wetherell (1829), i Man & Ey. 429 (250 bushels.of wheat), approved. Colonial Ins. Co. v. Adelaide Ins. Co. (1886), 12 App. Gas., at p. 138 ; Morgan v. Gath (1865), 3t L. J. Ex. 165 (500 piouls China cotton). => Hart V. Milli (1846), 15 M. & W. 85 (two dozen of port) ; Cwnliffe V. Ha/rrieon (1851), 6 Exoh, 903; 20 L. J. Ex. 325; c/. Dixon v. Fletcher (1837), 3 M. & W. 146, (cotton), and cases in next note. < Cf. Levy v. Green (1859), 28 L. J. Q. B. 319, Ex. Oh. ; cf. Nicholson v. Bradfield Union (1866), L. R. 1 Q. B., at pp. 624, 625, per Ld. Blackburn PERFOBMANCE OF TEE OONTBAOT. 63 to buy 150 quarters of wheat, lie is not at liberty to call for a small Sect. 30. portion without being prepared to receive the whole quantity," ^ unless, of course, he has stipulated for so doing. When the seller delivers a larger quantity of goods than was ordered, such delivery operates as a proposal for a new contract.^ This, presumably, is the effect of any tender of goods which are not in con- formity with the contract. When the seller is uncertain as to the exact amount he can deliver, he may protect himself by using such terms as " about " so many tons, or so many tons " more or less," and he is then allowed a reasonable margin.^ Sub-sect. (3) was amended in Committee. 31. — (1.) Unless otherwise agreed, the buyer of goods instalment is not bound to accept delivery thereof by instalments.* ^ "'enes. (2.) Where there is a contract for the sale of goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending on the terms of the contract, and the circum- stances of the case, whether the breach of contract is a repudiation of the whole contract, or whether it is a severable breach giving rise to a claim for compensa- tion, but not to a right to treat the whole contract as repudiated.^ Sub-sect. (1.) " Suppose," says Lord Bramwell, " a man orders a suit of clothes, the price being £7 ; £4 for the coat, £2 for the trousers, » Kingdom v. Cox (1848), 5 C. B. 522, at p. 526, per "Wilde, C.J. (iron girders). ' Ounliffe v. Barrison (1851), 6 Exoh., at p. 906, per Parke, B. (10 hogsheads of claret). ' Gockerdl v. AueompU (1857), 26 L. J. C. P. 194; McConneU v. Mwrphy (1873), L. B. 5 P. C. 203. As to importing such a term by usage, see Moore v. Campbell (1854), 10 Exoh. 323; 23 L. J. Ex. 310 (100 tons of hemp) ; and see p. 178. « ReuUr v. Bala (1879), 4 C. P. D. 239, C. A. (25 tons of pepper). Nor can he demand it ; see note to last section. « Mersey Steel & Iron Co. v. Naylor & Co. (1884), 9 App. Oas. 434. 64 THE SALE OF GOODS ACT, 1893. Sect. 31. and £1 for the waistcoat, can he be made to take the coat only, whether they were all to be delivered together, or the trousers and waistcoat iirst ? " and he then proceeds to shew that this cannot be."^ On the other hand, the circumstances of a contract may be such that an agreement for delivery by instalments will be implied. "In many cases of contracts to supply a quantity of goods to be delivered within a fixed period the whole quantity cannot, from the very nature of the case, be delivered at one time," as, for instance, in the case of contracts for the supply of provisions for the army and navy.' Sub-sect. (2.) It is very difficult to reconcile the decisions in which it has been held that the refusal to deliver, accept, or pay for a par- ticular instalment, is a breach going to the root of the contract ^ with those in which the contrary has been held.* But the true principle is that each case must be judged on its own merits. " The rule of law," says Lord Blackburn, "is that where there is a contract in which there are two parties, each side having to do something, if you see that the failure to perform one part of it goes to the root of the con- tract, it is a good defence to say, ' I am not going on to perform my part of it when that which is the root of the whole and the substantial consideration for my performance is defeated by your misconduct.' " * Delivery to 32. — (1.) Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmis- sion to the buyer, is prima facie deemed to be a delivery of the goods to the buyer.® earner. * H(mck V. Mvller (1881), 7 Q. B. D. 92, at p. 99, C. A. ' Golonial Ins. Co. of New Zealand v. Adelaide Ins. Co. (1886), 12 App. Gas., at pp. 138, 139, P. C. ' See Withers v. Reynolds (1831), 2 B. & Ad. 882; Hoare v. Bennie (1859), 29 L. J. Ex. 73 ; Eonch v. Muller (1881), 7 Q. B. D. 92, C. A. * See Jonassohn v. Young (1863), 32 L. J. Q. B. 385 ; Simpson v. Crip- pin (1872), L. E. 8 Q. B. 14; Freeth v. Burr (1874), L. E. 9 0. P. 208. * Mersey Steel Co. v. Naylor & Co. (1884), 9 App. Cas., at p. 443 ; and see per Jessel, M.E., in court below, 9 Q. B. D., at p. 657. ° For statement of principle, see Wait v. Baker (1848), 2 Exoh. 1, at p. 7, per Parke, B. ; Dunlop v. Lambert (1839), 6 01. & P. 600, at p. 620, per Ld. Cottenham; Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B., at p. 328, per Blackburn, J. For illustrations, see Button v. Solomonson (1803), 3 B. & P. 582 (carrier by land) ; Bryans v. Nix (1839), 4 M. & W. 775 (canal boat); Alexander v. Gardner (1835), 1 Bing N, C. 671 (ship); FERFOBMANCE OF TEE CONTRACT. 65 (2.) Unless otherwise authorised by the buyer, the Sect. 32. seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself,* or may hold the seller responsible in damages. (3.) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such sea transit. Sub-sect. (1.) The rule that delivery of goods to a carrier is prima EfEect of fade delivery to the buyer, passing to him the property and the risk, delivery to if they have not passed before, is the natural complement of the rule th.&t prima facie the proper place for delivery is the seller's abode, or the place where the goods are at the time of sale, am,te, p. 59. It is to be noted that, though the carrier is ordinarily the agent of the buyer to receive the goods, he is not his agent to accept them ; and this is reasonable, for he cannot judge whether the goods are in conformity with the contract or not ; so, too, while the goods are ia the hands of a carrier, as such they are liable to be stopped in transitu, post, p. 81 ; and of course they may be delivered to the carrier on such terms as to make him the seller's agent, ante, p. 44. When goods are sent " carriage forward " it is strong evidence that the delivery to the carrier was intended as a delivery to the buyer. Sub-sect. (2.) " Delivery of goods to a carrier or wharfinger," says Seller's Lord Ellenborough, " with due care and diligence is sufficient to duty. Ex p. Pearson (1868), L. R. 3 Oh. App. 443 (railway); Bell on Sale (Scotland), p. 86. 1 Clarke v. Hutchins (1811), 14 Bast, 475; BucTtmom v. Levi (1813), 3 Camp. 414 ; Indian Contract Act, 1872, § 91 ; Story on Sale, § 305. " Hanson v. Armitage (1822), 5 B. & Aid. 557; Norman v. PhiUips (1845), 14 M. & W. 277; Meredith v. Meigh (1853), 2 B. & B. 364. P 66 THE BALE OF GOODS ACT, 1893. Sect. 32. Sea transit. Bisk where goods are delivered at distant place. charge the purchaser, but he has a right to require that in making this delivery due care and diligence shall be exercised by the seller." ^ Sub-sect. (3.) As regards goods sent by sea, Mr. Bell, -summing up the Scotch cases, says : " In delivering goods on ship board, the seller is bound not only to charge the ship-master or shipping company with them effectually, but, though not bound to insure, he must give such notice as to enable the buyer to insure." ^ There appears to be no English decision in point, but the Scotch rule is good sense and has been adopted by the Act. Where goods are forwarded by sea by an agent to his principal, it seems to be the duty of the agent to insure, in the absence of any different agreement or course of dealing.^ 33^ Where the seller of goods agrees to deliver them, at his own risk, at a place other than that where they are when sold, the buyer must, nevertheless, unless other- wise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit.* " A manufacturer," says Alderson, B., "who contracts to deliver a manufactured article at a distant place, must indeed stand the risk of any extraordinary or unusual deterioration ; but the vendee is bound to accept the article if only deteriorated to the extent that it is necessarily subject to in its course of transit from the one place to the other." ' There appeared to be no reason for confining the rule to the case of a manufacturer, nor is it inconsistent with the case of Beer v. Walker,^ where the buyer was held entitled to reject rabbits which arrived in Brighton in an unsaleable condition, though they were saleable when sent off from London. In the case of goods such as rabbits, they are not really merchantable when sent off by the seller unless they are in such condition as to continue saleable for a reasonable time. As to negativing implied terms, see sect. 55. Buyers 34. — (1.) Where goods are delivered to the buyer, examining which he has not previously examined, he is not deemed the goods, to have accepted them unless and uatil he has had a ' Biickman v. Levi (1813), 3 Camp. 414. ' Law of Sale, p. 89. ^ Smith V. Lascelles (1788), 1 R. E. 457. * Bull V. Edbison (1854), 10 Bxoh. 342; 24 L. J. Ex. 165 ; Benjamin on Sale, 4th ed., p. 656. " Bull V. Bohison (1854), 10 Exoh., at p. 346. « Beery. Walker (1877), 46 L. J. C. P. 677. PERFORMANCE OF THE CONTRACT. 67 reasonable opportunity of examining tliem for the pur- Sect. 34. pose of ascertaining whether they are in conformity with the contract.^ (2.) Unless otherwise agreed,^ when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.^ " Suppose,'' says Lord Bramwell, " I order a certain quantity of lime to be taken to a farm, and I am not there to object, and nobody else is there to object to it, I shall not be at liberty afterwards to say : ' Those goods have not been accepted and received by me ;' they have been as much as it was possible, unless I had chosen to be there to make objection. So, on the other hand, if I go to a shop for an article I have previously ordered, and it is delivered to me, wrapped up, though I cannot see what it is, there cannot be the slightest question that I have received and accepted the goods, if they turn out to be in conformity with the order ; yet nobody can say that I shall not have a right to object to them afterwards, if they are not in conformity with the contract." * As to negativing implied terms, see sect. 55, post, p. 103. Where goods are bought by sample, the place of delivery is prima Jade the place of examination.' 35. The buyer is deemed to have accepted the goods Accept- when he intimates to the seller that he has accepted ^"''^" them,® or when the goods have been delivered to him, ' Lorymer v. Smith (1822), 1 B. & 0. 1 ; Toulmin v. Bedley (1845), 2 0. & K. 157, see p. 160 ; cf. Hunt v. Becht (1853), 8 Exoh. 814, at p. 817 ; Heilbutt V. Hickson (1872), L. E. 7 C. P. 438, at p. 456, per Brett, J. As to waiver of inspection, see Castle v. Sworder (1861), 30 L. J. Ex., at p. 312. 2 Pettm V. Mitchell (1842), 4 M. & Gr. 819. s Isherwood v. Whitmore (1843), 11 M. & W. 347, see at p. 350, and S.O. on demurrer, 10 M. & W. 757 (goods in closed casks). Cf. Startup V. Macdonald (1845), 6 M. & Gr., at p. 610, per Eolfo, B. * Castle V. Sworder (1860), 29 L. J. Ex. 285, at p. 238. See S.C. 30 L. J. Ex., at p. 312, Ex. Ch. = PerMns v. Bell (1893), 1 Q. B. 193, 0. A. (barley bought by sample). » Saunders v. Topp (1849), 4 Exch. 390, 18 L. J. Ex. 374. F 2 68 TEE SALE OF GOODS ACT, 1893. Sect. 35. and he does any act in relation to them which is incon- sistent with the ownership of the seller,^ or when, after the lapse of a reasonable time, he retains the goods with- out intimating to the seller that he has rejected them.^ The question of acceptance is only material where there is a right to reject. Most of the numerous decisions relating to acceptance have arisen on the construction of the Statute of Frauds.^ They must be looked at critically, because it is now well settled that there may be an acceptance within the meaning of that statute, which is not an accept- ance in performance of the contract. For the purposes of the statute (now reproduced in sect. 4 of the Act, ante, p. 13), any dealing with the goods which recognises a pre-existing contract of sale is an accept- ance; but such an acceptance may not be finally binding on the buyer, precluding him from rejecting the goods.* For example, " the purchaser has [may have] a right to object that the bulk does not correspond with the sample after acceptance within the Statute of Frauds." = The right of rejecting goods as not being in conformity with the contract appears to be larger in Scotland than in England. It seems that in Scotland a buyer may reject goods which he has accepted if he do so "tiraeously," whereas in England he could only do so if the contract contained what the continental lawyers call a " resolutive " condition." ^ Conditional Goods may, of course, by arrangement, be accepted conditionally "^ acceptance. ^^^ j^\^q acceptance may in such case be withdrawn on failure of the condition.' A re-sale by the buyer is strong evidence of acceptance, but may not be conclusive. • Parlter v. Falmer (1821), 4 B. & Aid. 387 ; Chapman v. Morton (1848), 11 M. & W. 534; Earnary. Groves (1855), 15 C. B. 667. " Sanders v. Jameson (1848), 2 C. & K. 557 ; Heilbutt v. Hickson (1872), L. R. 7 C. r., at pp. 451, 452, reviewing the cases. See, too, the cases on " sale or return," ante, p. 39. ' See Benjamin on Sale, 4th ed., pp. 134-169. ♦ Page v. Morgan (1885), 15 Q. B. D. 228, C. A. ; Benjamin on Sale, 4tb ed., pp. 140-150. = Morton v. Tibhett (1850), 15 Q. B., at p. 431. " Couston V. Chapman (1872), L. E. 2 So. App., at p. 254. For resoln- tive conditions, see Lamond v. Davall (1847), 9 Q. B. 1030; Head v. Tattersall (1871), L. E. 7 Ex. 7. ' Lucy V. Mouflet (1860), 29 L. J. Ex. 110; Heilbutt v. Hickson (1872), L. E. 7 0. P. 438. PERFORMANCE OF THE CONTRACT. 69 36. Unless otherwise agreed, where goods are de- Sect. 36. livered to the buyer, and he refuses to accept them, ^ . . r ' Buyer not having the right so to do, he is not bound to return bound to them to the seller, but it is sufficient if he intimates ^^'"™ , f 616Cb6Cl to the seller that he refuses to accept them.^ goods. The buyer, says Lord Esher, may return the goods, or offer to return them, if not according to contract; but it is suflBcient to signify his rejection of them by stating that they are not according to contract, and that they are at the vendor's risk. No particular form is essential. It is sufficient if he does any unequivocal act shewing that he rejects them.' 37. When the seller is ready and willing to deliver Liability of the goods, and requests the buyer to take delivery, and ^"^j^"^ ^^ the buyer does not within a reasonable time after such or refusing request take delivery of the goods, he is liable to the ^a^^° seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods.' Provided that nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.* Conversely, if the seller is in default in making delivery, and the buyer, notwithstanding the delay, accepts the goods, he may recover damages for any loss occasioned by the delay, post, p. 96. When the seller holds the goods in the exercise of his right of lien, he cannot charge for expenses of keeping them, post, p. 75. » QrimoUby v. Wells (1875), L. E. 10 C. P. 391 ; Benjamin on Sale, 4th •ed., p. 649 ; as to the place of rejeotioD, see Seilbutt v. Hichson (1872), L. K. 7 C. P. 438, at p. 456, per Brett, J. ' Grimoldby v. Wells (1875), L. E. 10 C. P., at p. 395, per Brett, J. » Greaves v. Ashlin (1813), 3 Camp. 425 ; of. Bloxam v. Sanders (1825) 4 B. & C. 941, at p. 950 ; Mayne on Damages, 4th ed., p. 165. As to the converse case, where the buyer properly rejects goods and the seller refuses to take them back, see Caswell v. Coare (1809), 1 Taunt. 566 ; Chesterman V.Lamb (1834), 2 A. & E. 129. * Cf. Mersey Steel Co. v. Naylor & Co. (1884), 9 App. Cas., at p. 443. 70 TEE SALE OF GOODS AOT, 1893. PAET IV. Eights of Unpaid Seller against the Goods. Sect. 38. 38. — (1.) The seller of goods is deemed to be an Unpaid '' unpaid seller " within the meaning of this Act — seller (a.) When the whole of the price has not been paid or defined. , . ' . . tendered ; ^ (b.) When a bill of exchange or other negotiable instrument has been received as conditional pay- ment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise.^ (2.) In this part of this Act the term " seller " includes any person who is in the position of a seller, as, for instance, an agent of the seller to whom the bill of lading has been indorsed,^ or a consignor or agent who has himself paid, or is directly responsible for, the price.* • Hod^gson v. Loy (1797), 7 T. K. 440; Feise v. Wray (1802), 3 East, 93, at p. 102 ; Van Oasteel v. Booker (1848), 2 Exch. 691, at pp. 702, 709 ; Exp. Chalmers (1873), L. E. 8 Oh. App. 289 (severable contract). As to tender after the appointed day, see Martindale v. Smith (1841), 1 Q. B. 389. ' Feise v. Wray (1802), 3 East, 98; Griffiths v. Perry (1859), 28 L. J. Q. B. 204; Ex p. Lambton (1875), L. E. 10 Oh. App., at p. 415 ; Ounn v. Bolckow, Vaughan & Co. (1875), L. K. 10 Oh. App. 491, at p. 501 ; cf. Ex p. Stapleton (1879), 10 Oh. D. 586, 0. A. Whether a bill is given in absolute or conditional payment is a question of fact, Ooldskede v. CottreU (1836), 2 M. & W. 20. = Morison v. Gray (1824), 2 Bing. 260. See, too, the Bills of Lading Act, 1855. * Feise v. Wray (1802), 3 East, 93 ; Tuelcer v. Sumphrey (1828), 4 Bing. 516; ef. Ireland v. Livingston (1872), L. E. 5 H. L., at pp. 408, 409, per Blackburn, J. JRiaHTS AGAINST TEE GOODS. 71 Sub-sect. (1.) In a case where tte seller had discounted the buyer's Sect. 38. acceptances, but the latter failed before the bills matured, it was held that the seller was unpaid, and Mellish, L.J., says, "If the bill is dishonoured before delivery of the goods has been made, then the vendor's lien revives, or, if the purchaser becomes openly insolvent before the delivery actually takes place, then the law does not compel the vendor to deliver to an insolvent purchaser." i Sub-sect. (2.) The Courts shew a strong inclination to give the rights of an unpaid seller against the goods to any one whose position can be shewn to be substantially analogous to that of an ordinary seller.^ 39. — (1.) Subject to the provisions of this Act, and Unpaid of any statute in that behalf,^ notwithstanding that the rigMa.^ property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law — (a.) A lien on the goods [or right to retain them] for the price while he is in possession of them ; (h.) In case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them ; (c) A right of re-sale as limited by this Act. (2.) Wbere the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and co-extensive with his rights of lien and stoppage in transitu where the property has passed to the buyer. ' Gunn V. Bolchow, Vaughan & Co. (1875), L. R. 10 Ch. App., at p. 501, overruling on this point, it seems, Bunney v. Poyntz (1833), 4 B. & Ad. 568. = Cf. Gassahoglou v. Gtbb (1888), 11 Q. B. D., at p. 804, per Lord Esher ; and, for examples, see Jenkyns v. Usborne (1844), 7 M. & Gr. 678, at p. 698 (re-sale by party who had contracted to buy goods) ; Imperial Bank v. Lond. & St. Katharine Book Co. (1877), 5 Oh. D. 195 (surety who has paid the price) ; Benjamin on Sale 4th ed., p. 847. ^ See sect. 47, post, p. 85, and the Factors Act, post, p. 130. 72 TEE SALE OF GOODS ACT, 1893. Sect. 39. By sect. 62, post, p. 112, " lien " in Scotland includes right of reten- tion. The words " or right to retain them " were inserted when the Bill was extended to Scotland. As to negativing implied terms, see sect. 55. Sub-sect. (1.) The origin of the seller's lien in English law is doubtful. It is probably founded on the custom of merchants.^ The term " lien " is unfortunate, because the seller's rights, arising out of his original ownership, in all cases exceed a mere lien. They " per- haps come nearer to the rights of a pawnee with^a power of sale than to any other common law rights." ' Many of the cases fail to distinguish the seller's right of lien from his right of stoppage in transitu. But it is important to keep them distinct, because, though the rights are analogous, they are in certain respects governed by different considerations.' The seller's lien attaches when the buyer is. in default, whether he be solvent or insolvent. The right of stoppage in transitu only arises when the buyer is insolvent. Moreover, it does not arise until the seller's lien is gone, for it presupposes that the seller has parted with the possession as well as with the property in the goods. " The right of stoppage in transitu," says Bowen, L.J., " is founded upon mercantile rules, and is borrowed from the custom of merchants ; from their custom it has been engrafted upon the law of England. The doctrine was at variance with the Civil Law, which laid down that, although the goods had been sold upon credit, and although the goods were in the possession of the vendee, there might be recaption by the vendor if the vendee became insolvent. But, according to the rules as to stoppage in transitu, the goods can be stopped only whilst they are passing through channels of communication for the purpose of reaching the hands of the vendee. This doctrine was adopted by the Court of Chancery, and afterwards by the Courts of Common Law." * The Courts look with great favour on the right of stoppage in transitu on account of its intrinsic justice.^ The decisions on the ' Blachhurn on Sale, p. 318. ' Blaelibmn on Sale, p. 325 ; cf. Bloxam v. Sanders (1825), 4 B. & C. 941, at p. 948 ; Schotsmans v. Lancashire Railway (1867), L. E. 2 Oh. App,, at p. 340. ' Blaclihv/rn on Sale, p. 308; cf. Bolton v. Lane. & Torks. Bailway (1866), L. E. 1 0. P., at p. 439, per "Willes, J. * Kendall v. Marshall, Stevens &. Co. (1883), 11 Q. B. D., at p. 368, 0. A. ; see Gibson v. Carruthers (1841), 8 M. & "W. 321, at p. 326, per Lord Abinger ; Blackburn on Sale, pp. 204-209. See Lord Bowen's statement as to the Civil Law criticised in Moyle's Sale in the Civil Law, p. 155. ' Cf. Cassaboglou v. Gibh (1883), 11 Q. B. D., at p. 804; Kemp v. Folk BIGETS AGAINST TEE GOODS. 73 subject are very numerous, but as Jessel, M.E., observes, " As to Sect. 39. several of them there is great difficulty in reconciling them with principle; as to others there is great difficulty in reconciling them with one another; and, as to the whole, the law on this subject is in a very unsatisfactory state." ^ The decisions now must be read subject to the Act. The seller's " right of retention " in Scotland was more extensive than the seller's lien in England. Apart from statute the seller had the right to retain the goods not only for the price, but also for any other debt due from the buyer even if there had been a sub-sale.^ But the Mercantile Law Amendment (Scotland) Act, 1856, sect. 2, altered the law in the case of sub-sales, and now the Act appears to apply a uniform rule to both countries. The Scotch law as to stoppage in transitu appears to be similar to English law. The doctrine " was first applied to Scottish bargains of moveables by a decision of the House of Lords in 1790, in place of a rule of presumed fraud intra triduum, which had formerly been held to entitle a seller to restitution of his goods even after delivery." ^ As to France, see art. 1654 of the CivU Code, which is modified in commercial matters by arts. 574-576 of the Code de Commerce, and Bravard Demangeat, Droit Commercial, 7th ed., p. 621. As to India, see sects. 95-106 of the Indian Contract Act, 1872. Sub-sect. (2) was necessary because it would be a contradiction in terms to speak of a man having a lien upon his own goods. The enactment is declaratory.* 40. In Scotland a seller of goods may attach the same Attach- while in his own hands or possession by arrestment or ™f°*y ^ •' seller in poinding; and such arrestment or poinding shall have Scotland. the same operation and effect in a competition or other- wise as an arrestment or poinding by a third party. (1882), 7 App. Gas., at p. 590; Tucker v. Bvmphrerj (1828), 4 Bing., at p. 519. ' Merchant Banking Co. v. Phcenix Co. (1877), 5 Oh. D., at p. 220 (ease of seller's lien). 2 Mercantile Law Commission, 1855, 2nd Bep., pp. 8, 9, 44; Melrose v. Hastie (1851), 13 Sess. Oas. 880. ' Bell's Principles, 9th ed., § 1307 ; Allan v. Stein (1790), M. 4949. * Griffiths V. Perry (1859), 28 L. J. Q. B. 204, at p. 208 ; Ex p. Chalmers (1873), L. E. 8 Ch. App„ at p. 292. 74 TEE SALE OF GOODS ACT, 1893. Sect. 40. This section is taken from sect. 3 of tte Mercantile Law Amend- ment (Scotland) Act, 1856. It is probably restrained by the pro- visions of sect. 47, post, p. 85. Unpaid Seller's Lien. SeUer's 41.— (1.) Subject to the proyisions of this Act, the unpaid seller of goods who , is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely : — {a.) Where the goods have been sold without any stipulation as to credit ; ^ (6.) Where the goods have been sold on credit, but the term of credit has expired ; ^ (c.) Where the buyer becomes insolvent.^ (2.) The seller may exercise his right of lien not- withstanding that he is in possession of the goods as agent or bailee [or custodier] for the buyer.* As to the term " unpaid seller," see sect. 38, ante, p. 70 ; and as to the term " insolvent,'' see post, p. 116. By sect. 62, post, " bailee " in Scotland includes custodier, and " lien " includes right of retention. ' Benjamin on Sale, 4th ed., p. 767 ; Bloxam v. Sanders (1825), 4 B. & C. 941, at p. 948 ; Miles v. Gorton (1834), 2 Cr. & M. 504, at p. 511. ' Benjamin on Bale, 4th ed., p. 839. The point has been twice decided at Nisi Prius, New v. Swain (1828), 1 Dan. & Lloyd, 193, per Bayley, J. ; Bunney v. Poyntz (1833), 4 B. & Ad. 568, at p. 569, per Littledale, J. ; see, too, dieta in Martindale v. Smith (1841), 1 Q. B., at p. 395 ; Val^ v. Odkeley (1851), 16 Q. B., at p. 951, and sects. 95, 96 of the Indian Contract Act, 1872. ' Bloxam v. Sanders (1825), 4 B. & C. 941 ; Bloxam v. Morley (1825), 4 B. & 0. 951; Griffiths v. Ferry (1859), 28 L. J. Q. B. 204; Ex p. Lamhion (1875), L. K. 10 Ch. App., at p. 415; Gunn v. Bolckow, Vaughan & Go. (1875), L. K. 10 Oh. App. 491, at p. 501. * Benjamin on Sale, 4th ed., p. 771 ; Townley v. Crump (1885), 4 A. & B. 58 ; Grice v. Bichardson (1877), 3 App. Oas. 319 P. 0. AUter before the Act if the buyer was solvent, Cusach v. BoMnson (1861), 30 L. J. Q. B., at p. 264, per Blackburn, J. ; and Blackburn on Sale, p. 224. Sub- sect. (2) was originally confined to the case where the buyer was insolvent. It was altered to its present form in Committee. VyPAIl) SELLER'S LIEN. 75 The lien is a lien for the price only, and not for chaiges for keeping Sect 41. the goods, for they are kept against the buyer's wilL* A sale on credit excludes the lien during the currency of the credit,^ unless there he a trade usage to the contrary.' As r^ards instalment contracts, MeUish, L.J., says, " the seller, notwithstanding he may have agreed to allow credit for the goods, is not hound to deliver any more goods under the contract until the price of the goods not yet delivered is tendered to him ; and if a debt is due to him for goods already delivered, he is entitled to refuse to deliver any more till he is paid the debt due for those already delivered, as well as the price of those still to be delivered. ... It would be strange if the right of a vendor who had agreed to deliver goods by instalments were less than that of a vendor who had sold specific goods." * Even if the seller has broken his contract to deliver while the buyer is solvent, his lien revives on the buyer becoming insolvent, and the buyer's trustee is only entitled at most to nominal dam^es for the breach, unless the value of the goods at the time of breach was above the contract price.* Where the seller exercises his right of lien, the buyer's trustee may afiSrm the contract and obtain the goods by tendering the price within a] reasonable time," for it is clear law that the mere insolvency or bankruptcy of a party to a contract does not rescind it. But it seems that, in the case of insolvency, an agreement to rescind will be presumed on slight grounds.' A sub-purchaser also is probably entitled to obtain the goods by tendering the price to the original seller within a reasonable time.* 42. Where an unpaid seller has made part delivery Part delivery. » Somet V. Briii^ mnpire Shipping Co. (1859), 28 L. J. Q. B. 220, Ex. Ch. affirmed by H. L., 30 L. J. Q. B. 229 (ease of shipwright's lien, but the rule was stated to apply to the seller's lien). « Spartali v. BenecJie (1850), 10 C. B. 212, at p. 223. » Fidd V. Ldean (1861), 30 L. J. Ex. 168 Ex. Ch. * Ex p. Chalmers (1873), L. B. 8 Ch. App. 289, at p. 293; cf. Ex p. StapleUm (1879), 10 Ch. D. 586, C. A. » Valpy V. Oakdey (1851), 16 Q. B. 941 ; 20 L. J. Q. B. 380; GrijUhs V. Perry (1859), 28 L. J. Q. B. 204. ' Ex p. StapleUm (1879), 10 Ch. D. 586, C. A. ' Morgan v. Bain (1874), Ii. E. 10 C. P. 15. As to trustee's right to disclaim onerous contracts, see s. 55 of the Bankruptcy Act, 1883. 'Exp. StapleUm, supri; and ef. Kemp v. Folk (1882), 7 App. C!as., at p. 578, per Lord Selbome. 76 THE SALE OF GOODS ACT, 1893. Sect. 42. of the goods, he may exercise his right of lien [or reten- tion] on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien ^ [or right of retention]. By sect. 62, " lien " in Scotland includes right of retention. In a case where it was unsuccessfully contended that the delivery of part of a cargo to a sub-purchaser was a constructive delivery of the whole, Lord Blackburn says : " It is said that delivery of a part is delivery of the whole. It may be a delivery of the whole. In agreeing for the delivery of goods with a person, you are not bound to take an actual corporeal delivery of the whole in order to constitute such a delivery, and it may very well be that a delivery of part of the goods is sufficient to afford strong evidence that it is intended as a delivery of the whole. If both parties intend it as a delivery of the whole, then it is a delivery of the whole ; but if either of the parties does not intend it as a delivery of the whole, if either of them dissents, then it is not a delivery of the whole." " Severable -^s regards severable contracts, if, for instance, delivery is to be made contract. by three instalments, and the first instalment has been delivered and paid for, and the second has been delivered but not paid for, the seller may withhold delivery of the third instalment till he has been paid for both the second and third instalments.^ But any instalment which has been paid for must be delivered, even though the buyer be bankrupt.* Tennina- 43. — (1.) The unpaid seller of goods loses his lien [or right of retention] thereon — (a.) When he delivers the goods to a carrier or other bailee [or custodier] for the purpose of transmission • Dixon V. Yates (1833), 5 B. & Ad. 313, see at p. 341 ; Miles v. Oorton (1834), 2 Or. & M. 504; cf. Ex p. Cooper (1879), 11 Ch. D. 68, C. A. (stoppage in transitu). ' Kemp V. Falk (1882), 7 App. Oas. 573, at p. 586, citing for the position, Bixon V. Tates, suprk, which was a case of seller's lien. ' Ex p. Chalmers (1873), L. E. 8 Ch. App. 289 (buyer insolvent Qu. if buyer was not insolvent ?). * Merchant Sanlcing Co. v. Phoenix Bessemer Steel Co. (1877), 5 Ch D 205. UNPAID SELLEB'S LIEN. 77 1 to the buyer ^ without reserving the right of disposal Sect. 43. of the goods ; ^ (6.) When the buyer or his agent lawfully obtains possession of the goods ; ^ (e.) By waiver thereof.* (2.) The unpaid seller of goods, having a lien [or right of retention] thereon, does not lose his lieu [or right of retention] by reason only that he has obtained judgment [or decree] for the price of the goods.^ As to the term " unpaid seller," see sect. 38, ante, p. 70 ; and as to reservation of the right of disposal, see sect. 19, ante, p. 44. The words in brackets are Scotch terms. When goods are delivered to a carrier for transmission to the buyer, the right of lien becomes changed into a right of stoppage in transitu should the buyer become insolvent. As in the case of the buyer's insolvency the two rights are similar in their effects, they are some- times confused in the cases. For the most part, the cases on what constitutes an actual receipt within the meaning of the Statute of Frauds appear to furnish the test for determining whether the seller's lien is gone or not. " The principle," says Blackburn, J., "is that there cannot be an actual receipt by the vendee so long as the goods continue in the possession of the seller so as to preserve his lien. But though the goods remain in the personal possession of the vendor, yet if it is agreed between the vendor and vendee that the possession shall thenceforth be kept, not ' Benjamin on Sale, 4th ed., p. 813 ; Bolton v. Lane. & Torhs. Bailway Co. (1866), L. E. 1 0. P., at p. 439, per Willes, J. ; Folloch on Possession, pp. 71, 72; cf. Orijiths v. Perry (1859), 28 L. J. Q. B., at pp. 207, 208; and see the cases cited for sect. 32, ante, p. 64. * As to reserving right of disposal, see sect. 19, ante, p. 44. 3 Hawes v. Watson (1824), 2 B. & 0. 543 ; Cooper v. Bill (1865), 84 L. J. Ex. 161 ; Benjamin on Sale, 4th ed., p. 811 ; Dodtley v. Varley (1840), 12 A. & E. 632; of. Schotsmans v. Lane. & Torhs. Bailway (1867), li. K. 2 Ch. App., at p. 335, as to stoppage in transitu. Amended in Committee. * Benjamin on Sale, 4th ed., pp. 808, 812, and see note, post, p. 78. ' Houlditch V. Desanges (1 818), 2 Start. 337 ; Scrivener v. Great Northern Bailway (1871), 19 W. B. 388. (Qm. if lien extends only to price or also to costs on the judgment ?) 78 THE SALE OF GOODS ACT, 1893. Sect. 43. as vendor, but as bailee for the purchaser, the right of lien is gone, and then there is sufficient receipt to satisfy the statute." i But this proposition must now be taken subject to the provisions of sect. 41 (2), ante, p. 74. The sub-section was altered in Committee into its present form. As the Bill was drafted it was confined to cases where the buyer was insolvent. Subject to sect. 47, when goods, at the time of sale, are in the possession of a third person there is no delivery to the buyer, and the seller's lien therefore is not divested till such third person attorns to the buyer.* Again, the seller may deliver the goods to the buyer on such terms as that the buyer holds them as bailee for the seller ; ' but in that case the seller has rather a special property in the goods arising out of the special agreement, than a lien properly so called.* Waiver of The right of lien is given to the seller by implication of law, see lien. sect. 39. It follows that it may be waived expressly. But it may also be waived by implication. The seller may reserve an express lien which excludes the implied one,* or he may take a bill for the price which ordinarily would exclude his lien during its currency, though the lien would revive on its dishonour ; " or the seller may assent to a sub-sale ; ^ or part with the documents of title so as to exclude his lien under the provisions of the Factors Acts, if the documents get into the hands of a holder for value. See, too, sect. 55 as to nega- tiving implied terms. Stoppage in transitu. Eight of 44. Subject to the provisions of this Act,^ when the transUn! '" buyer of goods becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right ' Cusack V. EoMnem (1861), 30 L. J. Q. B., at p. 261r; cf. Baldey v. Parker (1823), 2 B. & C, at p. 44, per Holroyd, J. * McEwan v. Smith (1849), 2 H. of L. Oas. 309, and ante, p. 61. ' Benjamin on Sale, 4th ed., p. 812. * Cf. Dodiley v. Varley (1840), 12 A. & E. 632, at p. 634, per Lord Demnan. ' Be Leith's Estate (1866), L. E. 1 C. P., at p. 305. As to effect of taking subsequent security, see Angus v. McLachlan (1888), 23 Ch. D. 330. " Valpy y. Oakeley (1851), 16 Q. B. 941, at p. 951 ; Qriffiths v. Ferry (1859), 28 L. J. Q. B., at p. 207. ' Knights v. Wiffen (1870), L. R. 5 Q, B. 660 ; see, too, sect. 47, post, p. 85. ' See sects. 45 to 47. transitu. STOPPAOE IN TRANSITU. 79 of stopping them in transitu, that is to say, he may Sect. 44. resume possession of the goods as long as they are in course of transit, and may retain them until payment or tender of the price.^ " The vendors being unpaid," says Lord Esher, " and the purchasers Nature of having become insolvent, according to the law merchant the vendors stoppage in had a right to atop the goods in transitu, although the property in such goods might have passed to the purchasers. The doctrine of stoppage in transitu has always been construed favourably to the vend or." 2 The right of stoppage in transitu is a right against the goods them- selves. " If they arrive injured and damaged in bulk or quality the right to stop in transitu is so far impaired, there is no contract or agreement which entitles the vendor to go beyond those goods in the state in which they arrive, and to claim moneys which have been paid by the underwriters to the purchasers of the goods in respect of their loss by the non-arrival of their property." ^ The term stoppage in transitu only applies in strictness to cases where the property in the goods has passed to the buyer.* If the property has not passed, the seller's rights depend upon his so-called right of lien or upon a reservation oi the jus disponendi? But it is now clear that the seller's right of withholding delivery extends to executory, as well as executed, contracts when the buyer is insolvent.^ In order to form a clear notion of the meaning of the term " trans- itus," two points should be noted : — (1) The goods may be in transitu although they have left the hands of the person to whom the seller intrusted them for transmission. It is immaterial how many agents' hands they may have passed through if they have not reached their • LicklarrovD v. Mason (1793), 6 East, 21 H. L. ; 1 Smith, L. C, 9th ed., p. 737, and notes ; Oibson v. Cwrruthers (1841), 8 M. & "W. 321 ; Bolton v. Lane. & TorJce. Railway (1866), L. K. 1 C. P. 431, at p. 439 ; Bethell v. Glarh (1887), 19 Q. B. D. 553, at p. 561, affirmed 20 Q. B. D. 615, 0. A. ; PollooJt on Possession, pp. 72, 74, 214. ^ Bethell v. Clark (1888), 20 Q. B. D., at p. 617, 0. A. ' Berndfson v. Strang (1868), L. E. 8 Ch. App. 588, at p. 591, per Lord Cairns ; cf. Phelps v. Ccmiber (1885), 29 Ch. D. 813, C. A. * Gibson v. Carruthers (1841), 8 M. & W. 321. = Bolton v. Lane. & Yorks. Bailway (1866), L. E. 1 C. P., at p. 439, per Willes, J. ' See sect. 89 (2), and Griffiths \. Perry (1859), 28 L. J. Q. B., at p. 208 ; Exp. Chalmers (1873), L. K. 8 Ch. App., at p. 292. 80 THE SALE OF GOODS ACT, 1893. Sect. 44. destination.! (2) The term does not necessarily imply that the goods "~~ are in motion, for, " if the goods are deposited with one who holds them merely as an agent to forward and has the custody as such, they are as much in transitu as if they were actually moving." ' " The essence of stoppage in transitu," says Lord Cairns, "is that the goods should be in the possession of a middleman." ^ Lord Esher, to a great extent adopting Lord Tenterden's definition of the term transitus, suggests the following proposition : — " Goods are deemed to be in transitu not only while they remain in the possession of the carrier, whether by water or land, and although such carrier may have been named and appointed by the consignee ; but also when they are in any place of deposit connected with the trans- mission and delivery of them, having been there deposited by the person who is carrying them for the purposes of transmission and delivery until they arrive at the actual possession of the consignee or at the possession of his agent, who is to hold them at his disposal and deal with them accordingly." * Mr. Justice E. S. Wright defines the term transitus, by stating that goods are in transitu " at any time before the goods have reached the possession of the vendee or of the vendee's servant, and whilst they were still in the possession of a carrier or other person, as an intermediary, who has not yet by attorn- ment, usage, or otherwise, agreed to hold them exclusively for the vendee." 5 When goods, which have been sold, are in the actual possession of a carrier or other bailee, three states of fact may exist with regard to them : — First, the carrier or other bailee may hold them as agent for the seller ; in that case the seller preserves his lien, and the right of stoppage in transitu does not arise. Secondly, the goods may be in medio. The carrier or other bailee may hold them in his character as such, and not exclusively as the agent of either the seller or buyer. In that case the right of stoppage in transitu exists. Thirdly, the carrier or other bailee may hold the goods either originally or by subsequent attornment, solely as agent for the buyer. In that case » Bethell v. Clark (1888), 20 Q. B. D., at p. 619, per Fry, L. J., approved ; Lyons v. Mnffnung (1890), 15 App. Cas. 391 P. 0. ^ Blaekhurn on Sale, p. 244. ^ Schotsman v. Lane. & Yorks. Bailway (1867), L. E. 2 Ch. App., at p. 338. * Kendal v. Marshall, Stevens & Co. (1883), 11 Q. B. D. 356, at p. 364. C. A. ; cf. Abbot on Shipping, 12th ed., p. 409. ' PoUock and Wright on Possession, p. 214. STOPPAGE IN TRANSITU. 81 there either has been no right of stoppage or it is determined. The Sect. 44. difficulties that arise are rather difficulties of fact than of law. 45. — (1.) Goods are deemed to be in course of transit Duration from the time when they are delivered to a carrier by ° °^°" ' land or water, or other bailee [or custodier], for the purpose of transmission to the buyer, until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee [or custodier].^ (2.) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the ap- pointed destination, the transit is at an end.^ (3.) If, after the arrival of the goods at the appointed destination, the carrier or other bailee [or custodier] ,' For principle, see Bolton v. Lane. & Tm-hs. Railway (1866), L. E. 1 O.P., at p. 439, per Willes, J. For illustrations see Whitehead v. Anderson (1842), 9 M. & W. 518 (promise by captain to deliver when satisfied as to freight, transit not ended) ; Dodson v. Wentworth (1842), 4 M. & Gtr. 1080 (goods delivered by carrier to warehouse to await orders, transit ended) ; Vcdpy V. Oibeon (1847), 4 0. B. 837 (goods delivered to shipping agent of buyer, transit ended) ; Schotsmans v. Lmc. & Yorks. Bailway (1867), I/. K. 2 Ch. App. 332 (goods delivered to general ship owned by buyer, transit ended) ; Coventry v. Gladstone (1868), L. E. 6 Eq. 44 (overside orders given by mate to holder of bill of lading, transit not ended); JExp. Gibbea (1875), 1 Ch. D. 101 (goods shipped to Liverpool and then put on railway for buyer, transit ended) ; Ex p. Watson (1877), 5 Ch. D. 35 (ineffectual interruption of transit) ; Ex p. Barrow (1877), 6 Ch. D. 783 (goods ware- housed by carrier as forwarding agent, transit not ended) (?); Ex p. Bosevear China Clay Co. (1879), 11 Ch. D. 560 (goods shipped on ship hired by buyer, destination not stated, transit not ended) ; Kemp v. FalJc (1882), 7 App. Cas. 573, see at p. 584 (goods on ship, cash receipts instead of delivery orders given to buyer, transit not ended) ; Ex p. Francis (1887), 4 Morrell, 146 (goods shipped in vessel of buyer's agent, transit ended); Bethell v. Clark (1888), 20 Q. B. D. 615 C. A. (goods ordered to be delivered to the " Darling Downs " to Melbourne, transit not ended by shipment) ; followed Lyons v. Hoffnung (1890), 15 App. Cas. 391 P. C. ' Whitehead v. Anderson (1842), 9 M. & W. 518, at p. 534; Blaelcburn on Sale, p. 249 ; ef. Land. & N. W. Bailway v. Bartlett (1861), 31 L. J. Ex. 92 (alteration of journey by agreement between carrier and con- signee) ; see, too, dictum of Bowen, L. J., in Kendal v. Marshall, Stevens & Co. (1883), 11 Q. B. D., at p. 369. G 82 THE SALE OF GOODS ACT, 18 Belhell v. Clark (1887), 19 Q. B. D. 553, at p. 561 ; affirmed by C. A., 20 Q. B. D. 615. = Snee v. Prescot (1743), 1 Atk. 245, at p. 250, per Ld. Hardwicke; Whitehead v. Anderson (1842), 9 M. & "W., at p. 534, per Parke, B. ^ JUtt V. Cowley (1816), 7 Taunt. 169, at p. 170, pfer Gibbs, C.J. * Whitehead v. Anderson (1842), 9 M. & W. 518 ; Ex p. Watson (1877), 5 Oh. D. 35 0. A.; Kemp v. Folk (1882), 7 App. Gas., at p. 585; ef. Phelps V. Camber (1885), 29 Ch. D. 813 C. A. (notice to consignee to hold proceeds ineffectual). = The Tigress (1863), 32 L. J. Adm. 97, at p. 102. « Whitehead v. Anderson (1842), 9 M. & W., at p. 534. RESALE BY BUYER OR SELLER. 85 The seller, says Dr. Lushington, " exercises his right of stoppage Sect. 46. in transitu at his own peril, and it is incumbent upon the master to give effect to a claim, as soon as he is satisfied it is made by the vendor, unless he is aware of a legal defeasance of the claim." ^ If after notice, lawfully given, the carrier delivers to the consignee or refuses to deliver to the seller, he is guilty of a conversion of the goods. In case of real doubt he should resort to an interpleader.^ The seller has also a remedy by injunction,' or, if the goods be in the hands of the master of a ship, by arrest of the ship.* In a case in the Court of Appeal, Lord Bramwell doubted whether there was any obligation on the part of the principal to send on a notice of stoppage to his agent ; ^ but, when the case went to the House of Lords, Lord Blackburn expressly repudiated this doubt.® Though, as between seller and carrier, the expenses of stoppage and re-delivery fall on the seller, it may be that the seller would be able to prove for them against the buyer's estate. Re-sale hy Bvyer or Seller. 47. Subject to the provisions of this Act,'' the unpaid Effect of seller's right of lien [or retention] or stoppage in transitu pjgjg^ \^ is not affected by any sale, or other disposition of the ^'"yer- goods which the buyer may have made,^ unless the seller has assented thereto.^ ' TU Tigress (1863), 32 T,. J. Adm. 97, at p. 101. « The Tigress (1863), 32 L. J. Adm., at p. 102 ; of. Litt v. Cowley (1816), 7 Taunt., at p. 170. ' Schotsmans v. Lancashire Railway (1867), L. E. 2 Oh. App., at p. 340. « The Tigress (1863), 32 L. J. Adm. 97. » Ex p. Falk (1880), 14 Ch. D. 446 C. A. « Kemp V. FalJc (1882), 7 App. Cas., at p. 585. ' See sect. 25 (2), ante, p. 54, buyer in possession of document of title, and see notes to sects. 9 and 10 of the Factors Act, 1889, post, p. 129. « As to seller's lien, see Dixon v. Yates (1833), 5 B. & Ad. 313, at p. 339 ; Farmeloe v. Bain (1876), 1 C. P. D. 445. As to stoppage in transitu. Craven v. Ryder (1816), 6 Taunt. 433 ; Ex p. Gelding Davis & Co. (1880), 13 Ch. D. 628 ; Kemp v. Falh (1882), 7 App. Cas. 573. As to delivery orders lefore the Factors Act, 1877, see McEwan v. Smith (1849), 2 H. of X. Cas. 309; Blaeltburn on Sale, p. 302, which shows the common law effect of these documents. ' Blackburn on Sale, p. 224; Stoveld v. Hughes (1811), 14 Bast. 308 ; Pearson v. Dawson (1858), 27 L. J. Q. B. 248 ; Woodley v. Coventry (1863), 86 THE SALE OF GOODS ACT, 1893. Sect. 47. Provided that where a document of title to goods has rcf~52& ^^^T^ lawfully transferred to any person as buyer or 53 Vict. c. owner of the goods, and that person transfers the docu- ment to a person who takes the document in good faith and for valuable consideration, then, if such last- mentioned transfer was by way of sale the unpaid seller's right of lien [or retention] or stoppage in transitu is defeated, and if such last-mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien [or retention] or stoppage in transitu can only be exercised subject to the rights of the transferee. The proviso reproduces and develops sect. 10 of the Factors Act, 1889,^08*, p. 130, which puts all documents of title on the same footmg as a bill of lading. See " document of title " and " lien," defined by sect. 62, post, p. 110. The effect of this enactment appears to be (a) to affirm the common law effect of the transfer of a biU. of lading, and (6) to put all the documents of title mentioned in sect. 1 of the Factors Act, 1889, on the same footing as bills of lading. As regards bills of lading the law appears to be as follows : — Transfer _ (1.) That as between buyer and seller, that is to say, the immediate of bill of parties to the contract, the indorsement of the bill of lading does not ^' affect the right of stoppage, nor does a further indorsement by the buyer affect the right unless the indorsement be for value,i but an antecedent debt may constitute such value.'' (2.) That if the holder of the bill of lading re-sells the goods or otherwise disposes of them for value to a third person, who pays the money, such third person acquires his interest in the goods, subject to the original seller's right of stoppage in transitu, unless he gets a transfer of the bill of lading.^ 32 L. J. Ex. 185 ; KnigUt v. Wiffen (1870), L. B. 5 Q. B. 660 ; Merchant Banking Co. v. Fhcenix Bessemer Co. (1877), 5 Oh. D. 205. • lAclcbarrow v. Mason (1793), 1 Smith, L. C, 9th ed., p. 737. ^ Leash v. Scott (1877), 2 Q. B. D. 376 C. A., dissenting from Badger v. Comptoir d'Escmnpte (1869), L. E. 2 P. C. 393. ' Kemp V. Folic (1882), 7 App. Gas. 57.3, see at p. 582, per Lord Black- burn. BE-SALE BY BUYER OR SELLER. 87 (3.) That since the Bills of Lading Act, 1855, as well as before, a Sect. 47. bill of lading may be indorsed by way of mortgage, pledge, or other security, and not by way of absolute sale.i Where a bill of lading is so transferred, the original seller retains his right of stoppage subject to rights of the incumbrancer, and, further, he may compel the in- cumbrancer to resort to other goods pledged with him by his debtor, if such there be, before resorting to the goods covered by the bill of lading.' (4.) That the right of stoppage in transitu is wholly defeated when the bill of lading is assigned absolutely for a consideration which is wholly paid.3 (5.) That when the bill of lading is transferred to a sub-purchaser absolutely and for value, but that value is wholly or in part unpaid, there is probably no longer any right to stop to the extent of the money which is unpaid. In Ex p. Golding Davis ifc Oo., the buyer re-sold the goods and became insolvent ; the bill of lading was made out in the name of the sub-purchaser but not delivered to him, and when the goods were stopped he had not paid the price. It was held, that the original seller was entitled to stop the goods for the original purchase-money. Cotton, L. J., said that the case must be decided "as if the bill of lading had been made out in the name of the original purchasers and had then been assigned by them to their sub- purchasers." < The decision was followed a few months afterwards in Ex p. Falh, and Lord Bramwell, referring to the cases where bills of lading had been pledged, said, " What difference is there in principle between the case of a man selling goods on credit for £500 and their being re-sold for £600, and the case of the purchaser pledging the goods for £600 with a right of sale by the pledgee ? " ^ But when Ex p. Folk was taken to the House of Lords it was found to turn on wholly different considerations. Lord Selborne seemed to doubt the rule laid down in Ex p. Golding Davis & Co., saying he assented to " the proposition that where the sub-purchasers get a good title as against the right of stoppage in transitu, there can be no stoppage • Sewell V. Burdich (1884), 10 App. Cas. 74. « Re Westzinthus (1833), 5 B. & Ad. 817 ; Spalding v. Euding (1843), 12 L. J. Ch. 503 ; 6 Beav. 376 ; approved Kemp v. Falh, suprk ; cf. Coventry V. Gladstone (1868), L. E. 6 Bq. 44. = Lickbarrow v. Mason (1793), 1 Smith, Lead. Cas., 9th ed., p. 737; Leask v. Scott (1877), 2 Q. B. D. 376, C. A. * Exp. Golding Davis & Co. (1880), 13 Ch. D. 628, at p. 637, C. A. " Exp. Folk (1880), 14 Ch. D. 446, at p. 457, C. A.; Phelps v. Comher (1885) 29 Ch. D. at p. 821. 88 THE SALE OF GOODS ACT, 1893. Sect. 47. in transitu as against the purchase-money payable by them to their — vendor." The other lords declined to give any opinion on the point.i As to bills of lading, see further the Bills of Lading Act, 1855, and notes thereto, post, p. 149. Sale not 48. — (1.) Subject to the provisions of this section, a rescinded Contract of sale is not rescinded by the mere exercise by by lien or g^^ unpaid Seller of his right of lien [or retention] or stoppage . in transitu, stoppage in transitu.^ (2.) Where an unpaid seller who has exercised his right of lien [or retention] or stoppage in transitu re-sells the goods, the buyer acquires a good title thereto as against the original buyer.^ (3.) Where the goods are of a perishable nature,* or where the unpaid seller gives notice to the buyer of his intention to re-sell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract.* (4.) Where the seller expressly reserves a right of re-sale in case the buyer should make default, and, on the buyer making default, re-sells the goods, the original • Kemp V. Falh (1882), 7 App. Cas. 573, at p. 577. ' Greaves v. Ashlin (1813), 3 Camp. 425 ; Martindale v. Smith (1841), 1 Q. B. 389; Wentworth v. Owthwaite (1842), 10 M. & W. 436 (Lord Abinger dissenting) ; Page v. Cowasjee (1866), L. E. 1 P. 0., at p. 145 ; Schotsmans v. Lane. & Yorks. Railway C1867), L. R. 2 Cli. App., at p. 340, per Lord Oairns ; Kemp v. Falk (1882), 7 App. Cas., at p. 581, per Lord Blackburn. » Milgate v. Kebble (1841), 3 M. & Gr. 100; cf. Lord v. Price (1874), L. E. 9 Ex. 54 ; and see sect. 8 of the Factors Act, 1889. * Notes to Lickharrow v. Mason, 1 Smith, Lead. Cas., 9th ed., p. 798 ; cf. Maclean v. Dunn (1828), 4 Bing. 722, at p. 728, where there had been a refusal to accept. = Pa^e V. Cmnasjee (1866), L. E. 1 P. C, at p. 145 ; Lord v. PHce (1874), L. E. 9 Ex., at p. 55; Ex p. Staphton (1879), 10 Ch. D. 586, 0. A. ; Indian Contract Act, 1872, § 107. BE- SALE BY BUTEB OB SELLEB. 89 contract of sale is thereby rescinded, but without pre- Sect. 48. judice to any claim the seller may have for damages.^ By sect. 62, post, p. 112, "lien" in Scotland includes right of retention. By sect 56, post, p. 104, reasonable time is a question of fact. As long as the buyer is in default he is not entitled to the im- mediate possession of the goods, and therefore cannot maintain an action for conversion even against a wrong-doer in possession.^ In Ex p. Stapleton, it was said that when the buyer was insolvent Ke-sale by the seller might re-sell unless the trustee or a sub-purchaser tendered seller, the price within a reasonable time, and nothing was said about notice. But as a fact the seller in that case gave fair notice of his intention to re-seU.3 Before the Factors Act, 1877, if the seller wrongfully re-sold goods left in his possession, the original buyer could follow them into the hands of an innocent purchaser,* but that Act protected the purchaser where the seller was left in possession of the documents of title, and sect. 8 of the Factors Act, 1889, now reproduced in sect. 25 (1) of this Act, protects the second purchaser if either the goods themselves or the documents of title to them are left in the seller's hands. See "unpaid seller," defined by sect. 38, ante, p. 70. Sub-sect. (3) is governed by sub-sect. (1). It only applies to an unpaid seller who has exercised his right of lien or stoppage. 1 Lanumd v. DavaU (1847), 9 Q. B. 1030, 16 L. J. Q. B. 136. = L(yrd v. Price (1874), L. K. 9 Ex. 54. » Exp.StapUbm (1879), 10 Ch. D. 586, C. A. * Langton v. Bigging (1859), 28 L. J. Ex. 252; Johneon v. Gredit. LyonnaU (1877), 3 C. P. D. 32. 90 THE SALE OF GOOD 8 ACT, 1893. PAET V. Actions foe Beeach of the Conteact, Bemedies of the Seller. Sect. 49. 49. — (1.) Where, under a contract of sale, the pro- Action for V^^J ^ t^® goods has passed to the buyer, and the price. buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods.^ (2.) Where, under a contract of sale, the price is payable on a day certain irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price," the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract.^ (3.) Nothing in this section shall prejudice the right of the seller in Scotland to recover interest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be. ' Scott V. England (1844), 2 D. & L. 520; cf. Kymer v. Sawercropp (1807), 1 Camp. 109 (goods stopped in transitu) ; Alexander v. Gardner (1835), 1 Bing. N. C. 671 (goods lost at sea). ' Dunlop V. Orote (1845), 2 0. & K. 153 ; Mayne on Damages, 4th ed., p. 167. BEMEDIES OF TEE SELLER. 91 The general rule of English law is that, in the absence of any different Sect. 49. agreement, when a debt becomes due, it is the duty of the debtor to go and tender the amount to his creditor without waiting for any demand.^ Before the Judicature Acts the price of goods sold could be recovered under the common indebitatus counts. The count for goods sold and delivered was applicable where the property had passed and the goods had been delivered to the buyer, and the price was payable at the time of action brought. The count for goods bargained and sold was applicable when the property had passed to the buyer and the contract had been completed in all respects except delivery, and the delivery was not a condition precedent to the payment of the price." Now it is sufficient to shew facts disclosing either cause of action. The term " sale " includes both a bargain and sale and a sale and delivery. See sect. 62, post, p. IM. The neglect or refusal to pay must be wrongful. It does not necessarily follow that because the property has passed the price is forthwith payable. The sale may have been on credit, or payment may be made to depend on some specified contingency.' Where there is an agreement for payment of the price by a bill Payment payable at a future day, and the bill is not given, the seller cannot sue by bill, for the price till the bill would have matured. His remedy before that time is by action for damages for breach of the agreement.* Where a bill is given for the price, the general rule is that it operates as conditional payment. If the bill be dishonoured, the debt revives, and the buyer may be sued either on the bill or on the consideration.^ The general rule of English law is that damages for the detention Interest, of a debt are merely nominal, and that in an action for the price of goods sold interest is not recoverable." Interest is only recoverable when there was an agreement for payment of interest, or where the debt was to be paid by a negotiable instrument, or under the special circumstances which give the jury or other tribunal a discretion under the 3 & 4 Will. 4, c. 42, s. 28.' ' Cf. Walton V. Mascall (1844), 13 M. & W., at p. 458 ; Fessard v. Mugnier (1865), 34 L. J. 0. P. 126. 2 Bulleu & Leake's Free, of Pleading, 3rd ed., pp. 38, 39. 3 Cf. Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B., at p. 328. * Paul v. Dod (1846), 2 0. B. 800 ; but see Bartholomew v. MarTcwich (1868), 33 L. J. 0. P. 145, where there was a repudiation of the contract. ' Chalmers on Bills of Exchange, 4th ed., p. 305. « Gordon v. Swan (1810), 2 Camp. 429 ; Beaumont v. Greathed (1846), 2 0. B, 494. ' Mayne on Damages, 4th ed., p. 146 ; Buncombe v. Brighton Club (1875), L. E. 10 Q. B. 371. 92 THE SALE OF GOODS ACT, 1893. Sect. 49. In Scotland it seems " the seller may sue the purchaser for the - — price and interest, whether the goods sold are specific or not, provided goods according to the contract have been tendered to the purchaser." i The Act preserves this rule. Damages 50. — (1.) Where the buyer wrongfully neglects or Acceptance, refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non- acceptance.^ (2.) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract.^ (3.) Where there is an available market for the goods in question * the measure of damage is prima facie to be ascertained by the difierence between the contract price and the market or current price at the time or times ^ when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept.® See note to sect. 53 as to non-delivery, and sect. 54 as to special damage. This section deals only with general damages. Subject to the special case mentioned in sect. 49 (53), where the property in the goods has not passed to the buyer, the seller's only remedy is an action for non-acceptance.' Where the property has ' Mercantile Law Commission, 1855, Second Report, p. 47. " See Bullen & Leake's Free, of Pleading, 3rd ed., p. 239 ; Graves v. Legg (1854), 9 Exch. 709. ^ Cort V. Amhergate Sailway (1851), 17 Q. B. 127; Mayne on Damages, 4th ed., p. 10. * As to what is a market, see per James, L. J., Dimkirh Colliery v. Lever (1878), 9 Ch. D., at p. 25, C. A. = Of. Brown v. Muller (1872), L. E. 7 Ex. 319; Soperv. Johnson (1873), L. E. 8 0. P. 167, as to non-delivery ; Mayne on Damages, 4th ed., p. 162. = Phillpoits V. Evans (1839), 5 M. & "W. 475 ; Barrow v. Arnaud (1846), 8 Q. B. 595, at p. 609, Ex. Ch. ; cf. Ex p. Stapleton (1879), 10 Ch. D., at p. 590, C. A. ' Of. Laird v. Pirn (1841), 7 M. & W. 478. REMEDIES OF THE BUTEE. 93 passed he may sue, either for the price ' or for damages for non- Sect. 50. acceptance. • As to damages for buyer's delay in taking delivery, see sect. 37, ante, p. 69. In some cases where the sell'er has re-sold, the re-sale price has been assumed to furnish the correct measure of damages." Bemedies of the Buyer. 51. — (1.) Where the seller wrongfully neglects or Damages refuses to deliver the goods to the buyer, the buyer may ^^i^°^ maintain an action against the seller for damages for non-delivery.^ (2.) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the seller's breach of contract.* (3.) Where there is an available market for the goods in question ^ the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time ® or times when they ought to have been delivered,^ ' Unless he has re-sold, in which case he must sue for damages, Lamond V. Bavall (1847), 9 Q. B. 1030. 2 Maclean v. Dunn (1828), 4 Bing. 722 ; Ex p. Staplefon (1879), 10 Ch. D. 586, 0. A. ^ Bullen & Leake's Free, of Pleading, 3rd ed., p. 241 ; Bamsden v. Gray (1849), 7 0. B. 961 ; cf. Jones v. Gibbons (1853), 8 Exoh. 920 (not deliver- ing goods agreed to be delivered " as required ") ; Levyis v. Clifton (1854), 14 C. B. 245 (refusal to permit growing timber, which had been sold by auction, to be carried away). * Smeed v. Foord (1859), 28 L. J. Q. B. 178 (non-delivery of machine) ; Or^b^rt-Borgnis v. Nugent (1885), 15 Q. B. D. 85, C. A. (specially manu- factured goods) ; cf. Hammond v. Bwsey (1887), 20 Q. B. D., at p. 93, 0. A. ' As to what constitutes an available market, see DunJtirk Colliery v. Lever (1878), 9 Ch. D., at p. 25, 0. A. ' Mayne on Damages, 4th ed,, p. 167 ; Leigh v. Paterson (1818), 8 Taunt. 540; Hinde v. Liddell (1875), L. B. 10 Q. B. 265. ' As to instalment deliveries, see Brown v. Muller (1872), L. E. 7 Ex. 319 ; Boper v. Johnson (1873), L. K. 8 C. P. 167 ; cf. Bergheim v. Blaen- avon Co. (1875), L. E. 10 Q. B. 319. 94 TEE SALE OF GOODS ACT, 1893. Sect. 51. or, if no time was fixed, then at the time of the refusal to deliver.^ This section, in terms, deals only with general damages. Eules as to special damages are saved by sect. 54. The section is declaratory and is founded on Hadley v. Baxendale. The rules laid down in Hadley v. Baxendale' are rules of general application. The measure of general or ordinary damages is the estimated loss directly and naturally resulting from the breach of contract, for those are the damages which a reasonable man would contemplate as the likely result of the breach if he directed his mind to it. The rule as to special damage depends on a similar principle. A party cannot be charged with special damages, unless, when he entered into the contract, he had notice of the special circumstances which made the special loss the likely result of the breach in the ordinary course of things. It has been objected to this rule that, when parties enter into a contract, they contemplate its performance and not its breach ; but the answer is that the standard of the law is always an objective one. The question is not what the ^particular parties had actually in contemplation, but what a reasonable man with their knowledge would have contemplated as the likely result if he had directed his attention to it.^ As to special damages, see further note to sect. 54, post, p. 100. The rule as to market price is clearly a deduction from the more general rule in Hadley v. Baxendale. " When a contract to deliver goods is broken," says Tindal, C. J., " the proper measure of damages in general is the difference between the contract price and the market price of such goods at the time when the contract is broken, because the purchaser having the money in his hands may go into the market and buy. So, if a contract to accept and pay for goods is broken, the same rule may be properly applied, for the seller may take his goods into the market and obtain the current price for them." * Hence, if in an action for non-delivery no difference between the contract price ' Mayne on Damages, 4th ed., p. 169 ; Shaw v. Holland (1846), 15 M. & W. 136, 146. ' Hadley v. Baxendale (1854), 9 Exch. 341, 354 ; 2 Smith, Lead. Gas., 9th ed., p. 594. * Cf. Cory v. Thamet Iron Works Co. (1868), L. E. 3 Q. B. 181, and Hammond v. Biiseey (1887), 20 Q. B. D., at p. 100, 0. A. * Barrow v. Arnaud (1846), 8 Q. B., at p. 609, Ex. Ch. REMEDIES OF THE BUYER. 95 and market price is shown, the plaintiff in general is only entitled to Sect. 51. nominal damages.^ The rule is so convenient and obvious that the English Courts Damages apply it whenever possible, even where it produces hardship in indi- for non- vidual cases.'' In Scotland the rule is not nearly so strictly applied.* delivery. But there are many cases in which the rule of market price is inapplicable. If it is partially applicable it will be applied with the necessary modifications, thus — (1.) The buyer may have prepaid the price. In that case he is probably entitled to recover the full market price of the goods on the day when they ought to have been delivered, together with interest on the money he has been kept out of.* (2.) The exact sort of goods the buyer has contracted for may not be obtainable, but if it is reasonable for him to buy in similar goods he may charge the seller with the difference in price.^ (3.) The seller may have repudiated his contract before the time for delivery arrives. In such case the buyer may either hold him to his contract and wait till the appointed time, or he may treat the contract as rescinded and sue at once. In. the latter case regard is still to be had to the market price at the agreed time, but it seems that the seller may give evidence in mitigation of damage if the buyer's conduct has been unreasonable.^ (4.) The time for delivery may have been extended at the seller's request. In that case the extended time will be taken as the contract time.' Again the market price test may be wholly inapplicable, and then recourse must be had to the wider general principle of Eadley v. Baxendale. This is the case where there is no market for the goods ' Talpy V. Oaheley (1851), 16 Q. B. 941. " Brady v. Oastler (1864), 33 L. J. Ex. 300 (special price for early delivery) ; WiUiams v. Reynolds (1865), 34 L. J. Q. B. 221 (profit on re-sale excluded) ; Thol v. Henderson (1881), 8 Q. B. D. 457 (sub-contract by buyer). ' Bunlop V. Biggins (1848), 1 H. of L. Gas. 381 ; see at p. 403. * Startup V. Cortazzi (1835), 2 0. M. & E. 165 ; cf. Barrow v. Arnaud (1846), 8 Q. B., at p. 610 ; and see Mayne on Damages, 4th ed., p. 175. » Einde v. Uddell (1875), L. E. 10 Q. B. 265. « Roper v. Johnson (1873), L. E. 8 C. P. 167, see at p. 181 ; Mayne on Damages, 4th ed., p. 164. ' Ogle V. Earl Vane (1868), L. E. 3 Q. B. 272, (non-delivery), Ex. Ch. ; Hickman v. Haynes (1875), L. E. 10 C. P. 598 (non-acceptance) ; cf. Tyers V. Bosedale Co. (1875), L. E. 10 Ex. 195, Ex. Oh. 96 THE SALE OF GOODS ACT, 1893. Sect. 61. Delay in delivery. Trover or detinue. in question at the time and place appointed for delivery,^ as where the buyer has ordered some special article or articles to be expressly manu&ctured for him. Each case then tarns on its particular circumstances, and is usually complicated by questions of special damage.' A similar rule applies to damages for delay, when goods of a particular description are ordered, and are ultimately accepted after the delay,' there being perhaps a. prima facie rule that the damage is the differen'ce between " the value of the article contracted for at the time when it ought to have been and the time when it actually was delivered." ' Subject to the provisions of sects. 8 to 10 of the Factors Act, 1889 ^ (now reproduced in sects. 25 and 47 of this Act), where, under a contract of sale, the property in the goods has passed to the buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action for damages for detention of the goods against the seller or any other person in possession of the goods, or an action for the conversion of the goods against the seller or any other person who has dealt with the goods under such circumstances as to amount to a conversion thereof.® As between seller and buyer the buyer cannot recover larger damages by suing in tort instead of in contract. Thus if he has not paid the price he can only recover the difference between the contract price and the value of the goods.'^ • Elbinger Actien Gesellschafft v. Armstrong (1874), L. E. 9 Q. B., at p. 476. ^ Sydraulie Co. v. MeHaff,e (1878), 4 Q. B. D.' 670, C. A. (machine ordered "as soon as possible"); Gr^ert Borgnis v. Nugent (1885), 15 Q. B. D. 85, C. A. (goods made to order). ' Smeed v. Foord (1859), 28 L. J. Q. B. 178 (steam thrashing-maohino) ; Cory V. Tliames Iron Worlcs Go. (1868), L. E. 3 Q. B. 181 (steam derrick). As to damages against a carrier for delay in delivering ordinary goods of commerce, see The Parana (1877), 2 P. D. 118, at p. 122, 0. A. * Elbinger Actien Gesellschafft v. Armstrong (1874), L. E. 9 Q. B., at p. 477, per Blackburn, J. " See Part IV., ante, pp. 70 to 89, as to seller's lien and stoppage in transitu, and note on p. 86 as to re-sale, and the Factors Act, post, p. 128. " As to detinue, see BuUen & Leake's Free, of Pleading, 3rd ed., p. 311 ; Langton v. Higgins (1859), 28 L. J. Ex. 252. As to conversion or trover, ibid., p. 290 ; also Bollins v. Fowler (1875), L. B. 7 H. L. 757. ' Chinery v. Viall (1860), 29 L. J. Ex. 180 ; cf. Johnson v. Stecu- (1863), 33 L. J. C. P. 130 ; Hiort v. L. tfc N, W, Railway (1879), 4 Ex. D. 188, 0. A. Aliter if perhaps the seller wrongfully retake the goods aftei- BEMEBIES OF THE BUYER. 97 As regards third parties the ordinary measure of damages for con- Sect. 51. version is the value of the goods at the time of the wrongful aot.^ ^— When, a man has sold goods to one person, a mere contract to sell them to another is not a conversion,' but a delivery of them in pursuance of that contract is a conversion,' : unless at the time of re-sale the original buyer was in default as regards paying the price.* Ordinarily a person who buys and receives goods which the seller had no right to sell is guilty of a conversion, however innocently he may have acted,' but from the 1st January, 1890, his liability has been much restricted hy sects. 8 and 9 of the Factors Act, 1889, ^osf, p. 128 (reproduced in sect. 25 of this Act). 62. In any action for breach of contract to deliver specific specific or ascertained goods the Court may, if it thinks PBrform- fit, on the application of the plaintiff, by its judgment [19 & 20 [or decree] direct that the contract shall be performed J'2' an/^' specifically, without giving the defendant the option of Jud. Act, retaining the goods on payment of damages. The judg- ment [or decree] may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise, as to the Court may seem just, and the application by the plaintiff may be made at any time before judgment [or decree]. The provisions of this section shall be deemed to be supplementary to, and not in derogation of, the right of specific implement in Scotland. See " specific goods " and " plaintiff" and " defendant " and " action " defined by sect. 62, post, pp. 112, 114. " Decree " is the Scotch term for judgment. This section reproduces sect. 2 of the Mercantile Law Amendment delivery, Gillard v. Brittan (1841), 8 M. & W. 575 ; but see Johnson v. Lancashire Bailway (1878), 3 C. P. D., at p. 507. ' Ibid., and France v. Ctaudet (1871), L. K. 6 Q. B. 199. ^ Lancashire Wagon Co. v. Fitzhugh (1861), 30 L. J. Ex. 231. = Md. ; cf. Cooper v. Willomatt (1845), 1 C. B. 672. * Milgate v. Eebhle (1841), 3 M. & Gr. 100. » Cooper V. Willomatt (1845), 1 C. B. 672; EObery v. Eatton (1864), 33 L. J. Ex. 190. H 98 THE SALE OF GOODS ACT, 1893. Sect. 62. Act, 1856, as modified by the Judicature Acts and Eules which enable a Judge to try a case without a jury and give a defendant the right to claim any relief by counterclaim which he could have sought if he had brought an independent action, and enable all courts to administer all remedies. Sect. 2 of the Mercantile Law Amendment Act extended the pro- visions of sect. 78 of the Common Law Procedure Act, 1854 (17 & 18 Vict. 0. 125) which enabled the Court in an action of detinue, to order that execution should issue for the return of the chattel detained without giving the defendant the option of retaining the chattel upon paying the value assessed. The enactment seems to have been passed to carry out the recommendation of the Mercantile Law Commission, 1855, and to assimilate English to Scotch law in this respect.^ In Scotland specific performance, or, as it is called, specific implement, is an ordinary and not an extraordinary remedy, and it can be demanded as of right wherever it is practicable.' Remedj' for breach of warranty. 53. — (1.) Where there is a breach of warranty by the seller,^ or where the buyer elects, or is compelled, to treat any breach of a condition on the part of the seller as a breach of warranty,* the buyer is not by reason only ' of such breach of warranty entitled to reject the goods ; but he may (a) set up against the seller the breach of warranty in diminution or extinction of the price ; ^ or ' Mercantile Law Commission (1855), Second Beport, p. 10. » Stewart v. Kennedy (1890), 15 App. Gas., at pp. 102, 105, H. L. ' Benjamin on Sale, 4th ed., p. 936 ; Syers v. Jonas (1848), 2 Exoh., at p. 117; Dawson v. Collis (1851), 10 0. B. 523, at p. 533; Sehn v. Bmness (1863), 32 L. J. Q. B., at p. 206, Ex. Ch. ; Beitbutt v. Bicicson (1872), L. B. 7 C. P. 438, at p. 451. * Ibid., and Street v. Blay (1831), 2 B. & Ad. 456, at p. 463 ; Gompertz V. Benton (1832), 1 Or. & M. 207 ; Parsons v. Sexton (1847), 4 C. B. 899 ; Couston V. Chapman (1872), L. E. 2 So. App., at p. 254. Aliter, of comse if the warranty be fraudulent, Murray v. Mann (1848), 2 Exoh. 538. ' See Bannerman v. White (1861), 31 L. J. 0. P. 28 ; c/. Behn-v. Burness (1863), 32 L. J. Q. B., at p. 206, Ex. Ch. ; Beilbutt v. Bickson (1872), L. E. 7 C. P. 438, as to condition for rejection. ' Mayne on Damages, 4th. ed., p. 105. As to reduction, see Street v. Blay (1831), 2 B. & Ad. 456; AUen v. Cameron (1833), 1 Cr. & M., at BEMEDIES OF THE BUYER. 99 (J) maintain an action against the seller for damages Sect, 53. for the breach of warranty.^ (2.) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.^ (3.) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.' (4.) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage.* (5.) Nothing in this section shall prejudice or affect the buyer's right of rejection in Scotland as declared by this Act. See " quality " and " warranty " defined, post, p. 113. This seetion is the complement to sect. 11, ante, p. 23. Sect. 11 shews when p. 840 ; Mmdel v. Steel (1841), 8 M. & W. 858, at p. 870. As to extinction, see PoulUm v. Lattimore (1829), 9 B. & C. 259. ' BuUen & Leake's Free, of Pleading, 3rd ed., p. 264. The buyer, if sued for the price, is not bound to set up the breach of warranty. He may pay in full, and then sue, Davis v. Sedges (1871), L. E. 6 Q. B. 687. » Bandall v. Soper (1858), 27 L. J. Q. B. 266 (seed barley of inferior quality) ; Smith v. Green (1875), 1 C. P. D. 92 (cow with foot and mouth disease); Bandall v. Newson (1877), 2 Q. B. D. 102, 0. A., at p. Ill (defective carriage-pole specially made for carriage) ; Hammond v. Bussey (1887), 20 Q. B. D. 79, C. A. (ship coal of particular quality— special damage). ' Mayne on Damages, 4th ed., p. 180 ; Loder v. KelmUClSST), 27 L. J. C. P. 27; Jones v. Just (1868), L. E. 3 Q. B. 197; of. Heilbutt v. Hiokson (1872), L. E. 7 C. P., at p. 453. ' Mayne on Damages, 4th ed., p. 182 ; Mondel v. Steel (1841), 8 M. & W. 858 ; ef. Bigge v. BwrUdge (1846), 15 M. & W. 598. H 2 100 THE SALE OF GOODS ACT, 1893. Sect. 53, goods may be rejected or when the buyer must resort to bis remedy for breach of warranty under this section. Although the buyer may not be able to reject the goods for simple breach of warranty, he may be entitled to reject them fbr fraud or some other invalidating cause. This conclusion is pointed to by the words " by reason only of such breach of warranty " in sub-sect. (1), and see sect. 61 (2). When the buyer is entitled to reject the goods, and does so, he can recover the price if he has paid it for the consideration for its payment has wholly failed.'^ Then arises the question what further com- pensation, if any, is he entitled to? When he rejects the goods the position seems to be this. He has contracted for the supply of certain goods, and those goods have never been supplied to him. The seller, therefore, has failed in his obligation to deliver, and whatever damages would be recoverable in an action for non-delivery should on principle be recoverable in this case.^ In a recent case, where a horse, sold with a warranty, was killed, by no fault of the buyer, before the time for return had elapsed, it was held that the buyer could sue for breach of warranty, though he could not return the horse.' Where an afSrmation, which might be treated as a warranty, is made fraudulently, the buyer's powers are larger. In the first place, he may retain the goods and sue for damages ; and secondly, if he can restore the goods unaltered, he may rescind the contract.* In Scotland hitherto no distinction has been drawn between warranties and conditions. Every materia,l term is a condition, and the rule has been that where the buyer can reject the goods but has not done so, he cannot sue for damages. The actio quanti minoris only applied to cases where the goods could not be returned ; but now the buyer has a double remedy, guarded however by sect. 59. Interest 54. Nothing in this Act shall affect the right of the damagesr ^uyer or the seller to recover interest or special damages in any case where by law interest or special damages may ' Mayne on Damages, 4th ed., p. 180. ' See Bridge v. Wain (1816), 1 Stark. 504, as commented on in ElJnnger Aetien Gesellschafft v. Armstrong (1874), L. R. 9 Q. B., at p. 476, where this position seems to be assumed. ' Chapman v. Withers (1888), 20 Q. B. D. 824. ' Holdsworth v. Glasgow Bank (1880), 5 App. Cas. 317, at pp. 323, 338 ('distinguishing goods from shares). EEMEDIES OF THE BUYER. 101 be recoverable, or to recover money paid where the con- Sect. 64. sideration for the payment of it has failed. " As to interest, see note to sect. 49, ante, p. 90. As regards special damages, there are no rules peculiar to the Special contract of sale. Each case must be determined on its own merits, damage, according to the general rule that, when a contract is entered into by the parties with knowledge that there are special circumstances attaching to it, which, in the ordinary course of things, would produce special loss if the contract were broken, the law implies a liability to pay damages for such special loss. " We must follow out the rule," says Cotton, L.J., in an action for non-delivery of a gun, " that the plaintiffs are only to have the damages which are the ordinary and natural consequences of the breach ; but this rule is subject to the limitation, that where the breach has occasioned a special loss which was actually in contemplation of the parties at the time of entering into the contract, that special loss, happening subsequently to the breach, must be taken into account." ^ In a later case, where the action was brought for breach of warranty. Fry, L.J., suggests four tests for determining whether the damages claimed are recoverable. (1.) What are the damages which actually resulted from the breach of contract ? (2.) Was the contract made under any special circum- stances, and, if so, what were those circumstances ? (3.) What, at the time of making the contract, was the common knowledge of both parties? (4.) What may the Court reasonably suppose to have been in the contemplation of the parties as a probable result of the breach of the contract, assuming the parties to have applied their minds to the contingency of there being such a breach ? ' The liability to pay damages for breach of contract is an obligation annexed by law independently of the volition of the parties, and the criterion is necessarily an objective one. What the parties themselves may have contemplated is immaterial. The question is what a reasonable man with their common knowledge would contemplate as a probable consequence of the breach if he applied his mind to it. The same result will be arrived at if the supposed contemplation of the > BydrauUc Engineering Co. v. MoEaffie (1878), 4 Q. B. D., at p. 677, C. A. (gun ordered to fulfil sub-contract) ; of. Orebert v. Nugent (1885), 15 Q. B. D. 85, 0. A. (goods ordered for French sub-contract). » Hammond v. Bimey (1887), 20 Q. B. D., at p. 100, C. A. (breach of warranty and sub-sale with similar warranty, costs of action reasonably defended). 102 TEE SALE OF GOODS ACT, 1893. Sect. 54. parties be wholly eliminated. Given a contract made without any special circumstances, then the measure of ordinary damages is the loss which naturally arises from the breach of such a contract. Given a contract made under special circumstances to the knowledge of both parties, then the special damages are those which naturally arise from a breach of such a contract under the particular circumstances. Failure of As to failure of consideration also, there is nothing peculiar to the ™°°'^*™' contract of sale. Money paid on a consideration which has failed can usually be recovered as money had and received.^ Where the plaintiff bought and paid for 175 tons of terra japonica, and only 155 tons were delivered, he was held entitled to recover a proportionate amount of the price under the common money counts.' tion. ' See BuUen & Leake's Free, of Pleading, 3rd ed., pp. 48, 49, and cases there collected. ^ Devaux v. ConoUy (1849), 8 C. B. 640 ; but of. CovaB v. Bingham (1853) 2 E. B. 836, where by the contract the bill of lading was made conclusive. ( 103' ) PAET VI. SUPPLEMENTAEY. 55. Where any right, duty, or liability would arise Sect. 55. under a contract of sale, by implication of law, it may Excinaion be negatived or varied by express agreement^ or by «* implied the course of dealing between the parties, or by usage, conditions. if the usage be such as to bind both parties to the contract. This section is merely an application of the general maxims, Ex- pressum fwAt cessare taciturn, and Modus et conventio vincunt legem. As Fothier has pointed out, sale is a consensual contract, and the parties may alter at will the obligations which the law implies from the general nature of the contract.' Lord Blackburn, discussing the correlative obligations of payment and delivery, says, " There is no rule of law to prevent the parties from making any bargain they please," ^ and Lord Esher says, " Merchants are not bound to make their contracts according to any rule of law." * Bfidarride accurately expresses the similar rule in France. " C'est surtout de la vente commerciale qu'on pent dire qu'elle pent se plier k toutes les moda- lity, sans autres exceptions que celles qui r^sulteraient d'une disposi- tion de la loi prohibitive, ou des exigeances de I'ordre de la morale ou des bonnes mceurs." ' In estimating the effect of an express stipulation, it must be borne ' See, e.g.. Ward v. Edbhs (1887), 4 App. Cas. 13 (diseased pigs sold "with all faults"). « Cmtrat de Vente, Nob. 1, 181, 306. » Calcutta Co. v. De Mattoe (1863), 32 L. J. Q. B., at p. 329; see the passage cited at length, post, pp. 180-182. « Honek v. Muller (1881), 7 Q. B. D., at p. 103, C. A. " Des Achats et Ventes, § 226. 104 TEE SALE OF GOODS ACT, 1893. Sect. 65. in mind, as Willes, J., remarks, that " the doctrine that an express provision excludes implication does not affect cases in which the express provision appears on the true construction of the contract to have been superadded for the benefit of the buyer." ^ French law goes further, and art. 1602 of the Civil Code provides that, where a stipulation in a contract of sale is ambiguous, it is to be construed in favour of the buyer. And this was the Eoman rule. In eontrahenda venditione arnbiguum pactum contra venditorem interpretandum est.' Eeferring to a consignee's lien for advances, Lord Westbury says : " Lien is not the result of an express contract ; it is given by implica- tion of law. If, therefore, a mercantile transaction which might involve a lien is created by a written contract, and security given for the result of the dealings in that relation, the express stipulation and agreement of the parties for security exclude lien, and limit their rights by the extent of the express contract they have made." * Usage. As regards trade usage, it is to be noted that when one party relies on and gives evidence of usage, the opposite party is at liberty to prove — " either, first, the non-existence of the usage ; or, secondly, its illegality or unreasonableness ; or, thirdly, that, in fact, it formed no part of the agreement between the parties." * For a list of terms and expressions which have been the subject of judicial construction, see note B, post, p. 174. Reasonable 56. Where, by this Act, any reference is made to a time a reasonable time, the question what is a reasonable time question of . fact. IS a question of fact. It is often difficult to say whether reasonable time is a question of law or a question of fact, or a mixed question of law and fact.^ The > Mody V. Oregeon (1868), L. K. 4 Ex., at p. 53, Ex. Oh. ; approved, Drummond v. Van Ingen (1887), 12 App. Gas., at p. 294, per Lord Hersohell. Cf. Bigge v. Parkinson (1862), 31 L. J. Ex. 301, Ex. Oh. (sale of provisions for troopship with warranty that they should pass inspection). ' In English law occasional effect is given to the maxim Verba fortius acdpiunter contra proferentem; see notes to Boe v. Tranmar, 2 Smith, Lead. Gas., 7th ed., p. 525. ' Be Leith's Estate (1866), L. K. 1 P. C. 296, at p. 805. ' Taylor on Evidence, § 1077. See all the authorities on usage collected and reviewed in notes to Wigglesworth v. Dallison, 2 Smith, Lead Oas., 9th ed., p. 569 ; and as to usage to bind both parties, i.e. that it must be known or taken to be known to both, see BoUnson v. Mollet (1875), L. E. 7 H. L. 802. » Tcvylor on Evidence, § 30. AUCTION SALES. 105 Act resolves the doubt as regards sale, by making it in all cases a Sect. 56. question of fact. Compare sect. 29 (4), ante, p. 60, as to reasonable hours. 57. Where any right, duty, or liability is declared Rights by this Act, it may, unless otherwise by this Act pro- ^^ action. vided, be enforced by action. This section is required in order to negative the rule of the common law, that when a statute provides no express penalty for disobedience to its provisions, any contravention of its provisions is punishable as a misdemeanour.^- See " action " defined by sect. 62, post, p. 109. 58. In the case of a sale by auction — Auction (1.) Where goods are put up for sale by auction in lots, each lot is prima facie deemed to be the subject of a separate contract of sale : ^ (2.) A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announce- ment is made any bidder may retract his bid : ^ (3.) Where a sale by auction is not notified to be [Cf.30&3i subject to a right to bid on behalf of the seller, it g 'g "^Jj^ shall not be lawful for the seller to bid himself or p- 153.] to employ any person to bid at such sale, or for the auctioneer knowingly* to take any bid from the seller or any such person: Any sale contravening this rule may be treated as fraudulent by the buyer: ^ • Stephen's Digest of Criminal Law, 3rd ed., p. 87. ' Emmerson v. Eeelis (1809), 2 Taunt. 38 ; Roots v. Lord Dormer (1832), 4 B. & Ad. 77; cf. Couston v. Chapman (1872), L. B. 2 So. App. 250 (a Scotch case). » Payne v. Cave (1789), 3 T. E. 148; Warlow v. Harrison (1858), 28 L. J. Q. B., at p. 21, per Lord Campbell. * Mainprice v. Westley (1865), 34 L. J. Q. B. 229 ; cf. 30 & 31 Vict. o. 48, s. 5. « BeaiweiZ v. CAneiie (1776), Cowp. 395, per Lord Mansfield; Thornett^^. Haines (1846), 15 M. & W. 367 ; Green v. Baverstock (1863), 32 L. J. C. P., 106 THE SALE OF GOODS ACT, 1893. Sect. 58. (4.) A sale by auction may be notified to be subject rcf 30cSi3i *° * reserved [or upset] price, and a right to bid Vict. c. 48. may also be reserved expressly by or on behalf of p. 154.] ' the seller.^ Where a right to bid is expressly reserved, but not otherwise, the seller, or any one person on his behalf, may bid at the auction.^ Bale. Auction. Nature of Sub-sect. (2.) The nature of the contract involved in a sale hy auction auction ^.jjg much discussed by the Eoman lawyers.' In England if the con- tract be resolved into offer and acceptance, it seems clear that the bid constitutes the offer. As the offer may be retracted before accept- ance, so, conversely, it has been held that if a sale be advertised, but the lots are afterwards withdrawn, an intending bidder has no right of action.* An auctioneer who sells goods which he has no right to sell may or may not be guilty of conversion, according to the circumstances." Bids at Suh-sect. (3.) Pormerlyjit seems to have been the rule in equity that, when a sale by auction was not expressly stated to be without reserve, the seller might employ one f)erson to bid, so as to prevent the property going at an undervalue. The Sales of Land by Auction Act, 1867 (30 & 31 Vict. c. 48) was passed to abolish this rule. It first declares that any sale which would be invalid at common law by reason of the employment of a puffer, shall be invalid in equity, and then proceeds to regulate sales at which a price is reserved or a right to bid is reserved, and in this it appears to go slightly further than the common law rule.' The Act does not apply to the sale of goods by auction, but this section is in substantial accordance with the Act. For the sake of comparison the Sale of Land by Auction Act, or, as 181 ; cf. Mortimer v. Bell (1865), L. E. 1 Ch. App., at p. IS. As to flotitious bids by person interested in the sale, but not the seller, see Union Bank v. Munster (1887), 37 Ch. D. 51, and the Rule of Eoman law, Alteriua cir- cumventio alio non prsshet actionem. ■ Ihid. ; and see Howard v. CaeOe (1796), 6 T. E., at p. 645, per Grose, J. « Thornett v. Eainei (1846), 15 M. & W., at p. 372; Mortimer v. Bell (1865), L. E. 1 Oh. App. 10 (where auctioneer and puffer both bid and sale was held void). ' See Moyle's Sale in the Civil Law. * Harris v. Nioherion (1873), L. E. 8 Q. B. 286. » Barlcer v. Furlong (1891), 2 Ch. 172 ; see, too, Sol. Journal, vol. 36, p. 480. » Parfitt V. Jepson (1877), 46 L. J. C. P. 529, at p. 533. REPEAL8. 107 it is commonly called, the Puffers Act, is set out in the Appendix, sect. 58. post, p. 153. The common law rule is an ancient one, Tollendum est igitur ex rebus contrahendis omne mendacium non Ucitaforem venditor, nee qui contra se liceatur emptor opponat.^ An agreement for a "knock-out" seems to be a conspiracy at common law. As to auctioneer's duty to put up his name, etc., during sale, see 8 & 9 Vict. c. 15, s. 7. 59. In Scotland where a buyer has elected to accept Payment goods which he might have rejected, and to treat a |°|5o°ia„(, breach of contract as only giving rise to a claim for when damages, he may, in an action by the seller for the warranty price, be required, in the discretion of the Court before alleged. which the action depends, to consign or pay into Court the price of the goods, or part thereof, or to give other reasonable security for the due payment thereof. In Scotland the actio quanti minoris has hitherto been extremely limited in its scope. It was only competent when the buyer could not return the goods. Now that the English rule is extended to Scotland, by sects. 11 and 53, it was thought well to safeguard it by this provision. It is to be regretted that the section was not extended to England, where it is a common fraud to keep the goods and then set up agamst the price an alleged breach of warranty. 60. The enactments mentioned in the schedule to this Bepeais. Act are hereby repealed as from the commencement of this Act to the extent in that schedule mentioned. Provided that such repeal shall not affect anything done or suffered, or any right, title, or interest acquired or accrued before the commencement of this Act, or any legal proceeding or remedy in respect of any such thing, right, title, or interest. See list of repeals, post, p. 117. ' Cicero, De Offieiis, lib. 3, s. 15, cited in Warhui v. ffanison (1858), 28 L. J, Q. B. 19. 108 TEE SALE OF GOODS ACT, 1893. Sect, 61. 61.— (1.) The rules in bankruptcy relating to con- Sav^ tracts- of sale shall continue to apply thereto, notwith- standing anything in this Act contained. (2.) The rules of the common law, including the law merchant, save in so far as they are inconsistent with the express provisions of this Act, and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress or coercion, mistake, or other invalidating cause, shall continue to apply to contracts for the sale of goods. (3.) Nothing in this Act or in any repeal effected thereby shall affect the enactments relating to bills of sale, or any enactment relating to the sale of goods which is not expressly repealed by this Act. (4.) The provisions of this Act relating to contracts of sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge, or other security. (5.) Nothing in this Act shall prejudice or affect the landlord's right of hypothec or sequestration for rent in Scotland. Sub-sect. (1.) The Act now in force is the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52). See in particular sect. 44 (2) (III.), reputed ownership ; sect. 48, fraudulent preferences ; sect. 49, protected bona fide transactions ; sect. 51, power of trustee to sell ; and sect. 55, power of trustee to disclaim onerous contracts. Sub-sect. (3.) The Bills of Sale Acts at present in force are the Acts of 1878, 1882, 1890, and 1891. The Act of 1878 alone affects sales as defined and dealt with by this Act. As to the Act of 1878, see App. 11., post, p. l.'JS. For examples of other Acts relating to sales, see the Conveyancing and Law of Property Act, 1881, so far as it relates to conveyances of personalty ; the Acts regulating the Sale of Food and Drugs ; the Acts regulating the sale of Poisons ; and the Weights and Measures Acts ; also the Acts relating to the sale of horses, 'post, p. 136. DEFINITIONS. 109 62. — (1.) In this Act, unless the context or subject- Sect. 62. matter otherwise requires — t ^ . ^ Interpreta- " Action" includes counterclaim and set-off, and in tionof Scotland condescendence and claim and compensation. Action. " Bailee " in Scotland includes custodier. Bailee. " Buyer " means a person who buys or agrees to buy Buyer, goods. "Contract of sale" includes an agreement to sell as Contract well as a sale. °* ^*'^" The term " contract of sale " is used to include both executory and executed contracts of sale ; see for instance, as justifying this, the 17th sect, of the Statute of Frauds. Probably a similar object is aimed at by the obscure art. 1589 of the French Civil Code : " La promesse de vente vaut vente." "Defendant" includes in Scotland defender, respon- Defendant, dent, and claimant in a multiple-poinding. " Delivery " means voluntary transfer of possession Delivery. from one person to another. ^g yj^j For rules as to delivery in contracts of sale, see sects. 27 to 32, ante, p. 57. Mr. Benjamin observes that the term "delivery" is used in different senses in the cases.i It would perhaps be more correct to say that a delivery which is effectual for one purpose is ineffectual for other purposes. For instance, delivery to a carrier generally passes the property to the buyer, but does not defeat the right of stoppage in transitu, while delivery by the carrier to the consignee does defeat that right. Sir F. Pollock defines delivery as " voluntary dispossession in favour of another," and proceeds to say that, " in all cases the essence of delivery is that the deliverer by some apt and manifest act puts the deliveree in the same position of control over the thing, either directly or through a custodian, which he himself held immediately before that act." 2 Delivery may be actual or constructive. Delivery is constructive 0. 61, a. 3,] ' Benjamin on Sale, 4th ed., p. 677. Pollock on Poaeeasion, pp. 43, 46. no THE SALE OF GOODS ACT, 1893. Sect. 62. when it is effected without any change in the actual possession of the thing delivered, as in the case of delivery by attornment or symbolic delivery. Delivery by attornment may take place in three classes of cases. First, the seller may be in possession of the goods, but after sale he may attorn' to the buyer, and continue to hold the goods as his bailee. Secondly, the goods may be in the possession of the buyer before sale, but after sale he may hold them on his own account.* Thirdly, the goods may be in the possession of a third person, as bailee for the seller. After sale such third person may attorn to the buyer and continue to hold them as his bailee.^ Sir F. Pollock has carefully discussed the so-called "symbolic delivery " by giving the buyer the key of the place where the goods are stored. He shews that the key is not the symbol of the goods, but that the transaction " consists of such a transfer of control in fact as the nature of the case admits, and as will practically suffice for causing the new possessor to be recognised as such." ^ But the transfer of a bill of lading appears to afford a genuine instance of symbolic delivery.* While goods are at sea, they can only be dealt with on land through the instrumentality of the bill of lading which represents them. The transfer of the bill of lading has the same effect as a delivery of the goods themselves. Where goods are taken possession of by the buyer under a license to seize, the transaction is equivalent to a delivery by the seller,^ and should perhaps be regarded as a case of actual delivery. A delivery by mistake may be inoperative.' It is to be noted that the Act makes no attempt to define " posses- sion." But a definition of possession for the purposes of the Factors Acts is given by sect. 1 (2) of the Factors Act, 1889, post, p. 120. The subject is exhaustively treated in Pollock and Wright, Possession in ihe Common Law J Document "Document of title to goods" has the same meaning as it has in the Factors Acts. • Btory on SaU, § 312a. ' Pollock on Possession, p. 72. ' Ihid., p. 61. ' Sanders v. Maelean (1883), 11 Q. B. D. 327, at p. 341. = Congreve v. EiieUs (1854), 10 Exoh. 298, at p. 308, per Parke, B. ' Godts v. Base (1855), 17 C. B. 229 ; Polloele on Possession, pp. 100-114. ' Professor Maitland, in an interesting article on the Seisin of Chattels, establishes that in early times the term " seisin" was applied to chattels DEFINITIONS. Ill By sect. 1 (4) of the Factors Act, 1889, post, p. 121, " The expres- Sect. 62. sion ' document of title ' shall include any bill of lading, dock warrant, ' ■warehouse-keeper's certificate, and warrant or order for the delivery of goods, and any other document used in the ordinary course of busi- ness as proof of the possession or control of goods, or authorising or purporting to authorise either by endorsement or delivery, the possessor of the document to transfer or receive goods thereby represented." " Factors Acts " mean the Factors Act, 1889 ; the Factors Factors (Scotland) Act, 1890, and any enactment amending or substituted for the same. See these Acts set out and noted, post, pp. 118, 135. " Fault " means wrongful act or default. Fault. This definition was inserted at the instance of Lord Watson. See sects. 7, 9, and 20, which require it. " Future goods " mean goods to be manufactured or Future acquired by the seller after the making of the contract ^°°^^' of sale. "See sect. 5, ante, p. 14, and note thereto, and p. 43, and post, p. 114. " Goods " include all chattels personal other than Goods. things in action and money, and in Scotland all cor- poreal movables except money. The term also includes emblements [industrial growing crops], and things at- tached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. Compare the definition of "goods" given by sect. 168 of the Bankruptcy Act, 1883, and contrast the definition of " personal chattels " given by sect. 4 of the Bills of Sale Act, 1878, post, p. 155. The words in brackets are a Scotch term. The term " goods, wares, and merchandise " is used in the 17th sect, of the Statute of Frauds, and in the Stamp Act, 1890, hut other statutes use simply the term " goods." The term applies to all " tangible moveable property." ^ Scrip and as freely as the term " possession " and as its equivalent (Law Quan Review, vol. i.). ' Cf. Blacltburn on Sale, pp. 6 and 9, 112 TEE SALE OF GOODS ACT, 1893. Sect, 62. shares are things in action, and so of course are bills, notes, and cheques.'^ Most of the decisions have arisen on the construction of the Statute of Frauds, and the definition of goods has been somewhat artificially extended in order to bring contracts of sale within the 17th rather than the 4th sect, of the Act, which does not recognise part performance. See^os^, p. 142. Tenants' fixtures, unsevered, seem to fall neither within the 4th nor the 17th sects.,* though the price of fixtures could be recovered on a count for fixtures sold and delivered. Emblements, or fructus industriales, are treated as goods, even though they are to derive benefit from the land after sale.' As regards frucius naturales, the question seems to turn on how they are treated by the contract. If they are to be delivered by the seller who is to sever them himself and deliver them, they are goods within the meaning of the 17th sect. If the buyer is to take them away, " the question seems to be whether it can be gathered from the contract that they are intended to remain in the land for the advan- tage of the purchaser, and are to derive benefit from so remaining." If so, they come within the 4th sect. If not, and they are to be delivered immediately, even though the buyer is to enter and take them, they come within the 17th sect.* The 17th sect, is now repealed and reproduced in sect. 4 of this Act, ante, p. 12. Lien. " Lien " in Scotland includes right of retention. Of. Factors (Scotland) Act, post, p. 135. The common law extent of the right of retention is cut down by the provisions of the Act. Plaintiff. "Plaintiff" includes [pursuer, complainer, claimant in a multiple-poinding], and defendant [or defender] counter claiming. The terms in brackets are Scotch terms. ' HvmUe v. Mitchell (1839), 11 A. & E. 205 ; Colonial Bank v. Whinney (1886), 11 App. Gas. 426 (shares) ; Laaig v. Smith (1831), 7 Bing. 284 (foreign bonds) ; Freeman v. Appleyard (1862), 32 L. J. Ex. 175 (certificate of RaUway Stock). « Lee v. GanJeell (1876), 1 Q. B. D. 700. ' Marshall v. Green (1875), 1 0. P. D. 35, at p. 42 ; Benjamin on Sale, 4th ed., p. 117. * Marshall v. Green (1875), 1 0. P. D., at p. 42, per Brett, J. (growing timber). But see Laveryv. Pursell (1888), 39 Oh. D. 508, per Chitty, J., ■where there was a sale of the building materials of a house which were to be cleared away in two months. This was held to be an agreement within the 4th section. DEFINITIONS. 113 " Property " means the general property in goods, and Sect. 62. not merely a special property. Pro^y. The essence of sale is tte transfer of the ownership or general property in goods from seller to buyer for a price. See " tJie " property, that is, the general property, distinguished from " a " property, that is, merely a special property, by Lord Bowen.^ The general property in certain goods may be in one person, while a special property in them is in another person, as in the case of a pledge where the pledgee has only a special property, the general property remaining in the pledgor.' The general property in goods may be transferred to one person subject to a special property in another.^ Again, the right of property in goods must be distinguished from the right to their present possession. The entire right of property may be in one person, while the right to possession may be in another, as in the case of a lien.* Thus, where there is a sale of specific goods for cash, the property passes by the contract, but the seller may retain the goods till the price is paid. Again, goods may be sold which are in the possession of a third person, such as a warehouseman, who has no property in the goods, but has a right to retain them till his charges are paid. " Quality of goods " includes their state or condition. Quality. See sects. 14 and 15, which require this definition. Corn or wine may be of excellent kind, but if it is sea-damaged it may not be merchantable. 1 Bmdick v. Sewell (1884), 13 Q. B. D., at p. 175, C. A., and 10 App. Cas., at p. 93. / 2 SalUday v. Eolgate (1868), L. E. 3 Ex. 299, Ex. Ch. 5 Franklin v. Neate (1844), 13 M. & W. 481 ; Jenkyns v. Broim (1849), 14 Q. B. 496. See a lien distinguished from a pledge, Donald v. Suckling (1866), L. K. 1 Q. B., at p. 612; cf. Howes v. Ball (1827), 7 B. & C. 481 (hypothecation) ; a pledge distinguished froto a mortgage, Fx p. Eubhard (1886), 17 Q. B. D., at p. 698 ; Be Morritt (1886), 18 Q. B. D., at p. 232 ; a pledge distinguished from a sale, Sewell v. Burdick (1884), 10 App. Oas. 74. * Mulliner v. Florence (1878), 3 Q. B. D. 484, C. A.; Blaekhurn on Sale, pp. 198, 316; MilgaU v. KebUe (1841), 3 M. & Gr. 100; Pollock an Possession, p. 120. goods. 114 TEE SALE OF GOODS ACT, 1893. Sect. 62. " Sale " includes a bargain and sale as well as a sale sai~ ^^^ delivery. This definition follows from the definition of sale given by sect. 1. See notes to that section and to sect. 49, ante, p. 91. Seller. " Seller " means a person who sells or agrees to sell goods. "Specific goods" mean goods identified and agreed upon at the time a contract of sale is made. Specific or individualised goods must be distinguished from general or unascertained goods. Where there is a contract for specific goods, the seller would not fulfil his contract by delivering any other goods than those agreed upon. When there is a contract for general goods the seller fulfils his contract by delivering at the appointed time any goods which answer to the description in the contract. It is clear that future goods, even though particularly described, do not come within the definition of specific goods, but for most purposes would be subject to the same considerations as general goods, ante, pp. 41, 43. The definition is only a prima facie one, because there may be a mixed case, namely, when there is a contract for the sale of an unascertained portion of a larger ascertained quantity of goods. Suppose a man having a hundred dozen of a particular brand of champagne in his cellar, agrees to sell twenty dozen of the champagne of that brand " now in my cellar." For some purposes this would be regarded as a contract for specific goods, while for other purposes it would be regarded as a contract for the sale of unascertained goods. The property in the wine would not pass till the twenty dozen had been appropriated to the contract (ante, p. 36), but if the whole of the wine were destroyed the seller would be discharged from his obligation {ante, p. 17). Warrauty. "Warranty," as regards England and Ireland, means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated. As regards Scotland, a breach of warranty shall be DEFINITIONS. 115 deemed to be a failure to perform a material part of the Sect. 62. contract. Sir W. Anson, in his work on contracts, has collected six different senses in which the word warranty is used in the cases.i but it is submitted that the definition given above is the most correct. See Note A, post, p. 168, where the subject is discussed at length. Lord Abinger, protesting against a warranty being confused with a con- dition, says, " a warranty is an express or implied statement of some things which the party undertakes shall be part of the contract, and though part of the contract yet collateral to the express object of it." '' The Act, in accordance with this view, draws throughout a dis- tinction between the terms " condition precedent " and " warranty.'' See sect. 11, ante, p. 23, and sects. 12 to 14, and 53, ante, p. 98. (2.) A thing is deemed to be doae "in good faith" Good faith. within the meaning of this Act when it is in fact done honestly, whether it be done negligently or not.^ The House of Lords in Berry v. Peek ' has exploded the notion of "legal fraud," and has established the principle that there is no tertium quid between good faith on the one hand, and bad faith or fraud on the other. " First," says Lord Herschell, " in order to sustain an action of What con- deceit, there must be proof of fraud, and nothing short of that will stitutea suffice. Secondly, fraud is proved when it is shewn that a false f''*"'^- representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless' whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second ; for one who makes a statement under such circumstances, can have no real belief in the truth of what he states. To prevent a false statement being fraudu- ' Amon on Contracts, 5th ed., p. 309. == Chanter v. SopMns (1838), 4 M, & "W. 399, at p. 404. See, too, Behn V. Burness (1863), 33 L. J. Q. B. 204, at p. 207; Beyworth v. EuteUnson (1867), L. E. 2 Q. B. 447 ; cf. Kennedy v. Panama Mail Co. (1867), L. B. 2 Q. B., at p. 587, and notes to Cutter v. Powell, 2 Smith, Lead. Oas., 9th ed., p. 31. ' Taken from the 45 & 46 Vict. o. 61 (Bills of Exchange Act, 1882, s. 90) ; cf. Jones v. Gordon (1877), 2 App. Cas. 616. * Berry v. Peek (1889), 14 App. Cas. 337. I 2 116 THE BALE OF GOODS ACT, 1893. Insolvent. Sect. 62, lent, there must, I think, always be an honest belief in its truth, And this probably covers the whole ground ; for one who knowingly alleges that which is false, has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made." i (3.) A person is deemed to be insolvent within the meaning of this Act who either has ceased to pay his debts in the ordinary course of business, or cannot pay his debts as they become due, whether he has committed an act of bankruptcy or not [and whether he has become a notour bankrupt or not,] ^ The words in brackets refer to Scotland. By sect. 96 of the Indian Contract Act, 1872, " a person is insolvent who has ceased to pay his debts in the ordinary course of business, or who is incapable of paying them." (4,) Goods are in a " deliverable state " within the meaning of this Act when they are in such a state that the buyer would under the contract be bound to take delivery of them.^ 63. This Act shall come into operation on the First day of January, One Thousand Eight Hundred and Ninety-four. 64. This Act may be cited as the Sale of Goods Act, 1893. The canon for construing a codifying Act was discussed by the House of Lords in a case on the Bills of Exchange Act, 1882. " I think," says Lord Herschell, " the proper course is in the first instance to examine the language of the statute, and to see what is its natural meaning, uninfluenced by any considerations derived from the previous 1 Derry v Peek (1889), 14 App. Cas., at p 374, H. L. ' Benjamin on Sale, 4th ed., 851 ; Biddleeonibe v. Bond (1835), 4 A. & E. 332 (a general inability to pay debts) ; Ex p. Carnforth Co. (1876), 3 Oh. D. 108, 0. A. ; see at p. 122 (an inability to pay avowed either in act or word, and a consequent intention on the part of the indebted com- pany not to pay their debts). , ' See Blaclcburn on Sale, p. 152, and sect. 18 (1), (2). Deliver- able state. Commence- ment. Short title. Canon of construc- tion. ENACTMENTS REPEALED. 117 state of the law; and not to start with enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if it will bear an interpretation in conformity with this view." But of course if any provision be of doubtful import resort to the previous state of the law would be perfectly legitimate.^ The provisions of this Act must be read with and subject to the provisions of the Interpretation Act, 1889, which apply to all Acts of Parliament, unless expressly excluded. Sect. 64. SCHEDULE. This schedule is to be read as referrlDg to the revised edition of the statutes prepared under the direction of the Statute Law Committee. Enactments Eepbaled. Session and Chapter. Title of Act and Extent of Repeal. 1 Jac. 1. C. 21 .. .. 29 Cha. 2. c. 3 .. .. Geo. 4. c. 14 .. 19 & 20 Vict. c. 60 19 & 20 Vict. c. 97 An Act against brokers. The whole Act. An Act for the prevention of frauds and perjuries. In part; that is to say, sections fifteen and sixteen.^ An Act for rendering a written memorandum necessary to the validity of cer- tain promises and engagements. In part ; that is to say, section seven. The Mercantile Law Amendment (Scotland) Act, 1856. In part ; that is to say, sections one, two, three, four, and five. The Mercantile Law Amendment Act, 1856. In part; that is to say, sections one and two. • Vagliano v. Bank of England (1891), A. C, at p. 145. 2 Commonly cited as sections sixteen and seventeen. 118 THE FACTORS ACT 1889. THE PACTOES ACT, 1889. (52 & 53 Vict. c. 45.) An Act to amend and consolidate the Factors Acts, [26th August, 1889.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice a,nd consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, as follows : [The Factors Act, 1889, which repeals the previous enactments dealing with similar subject-matter, is a partial application to English law of the French maxim, " En fait de meubles possession vaut titre." The present Act is the result of a long struggle between the mercantile community on the one hand and the principles of common law on the other. The general rule of the common law was, Nemo dot quod non habet,^ and it was held that the mere fact that a person was in possession of goods or documents of title to goods did not enable him to dispose of those goods in contravention of his instructions with respect to them. The merchants and bankers contended that, in the interests of commerce, if a person was put or left in the possession of goods or documents of title, he ought, as regards innocent third parties, to be treated as the owner of the goods. As Bowen, L.J., has pointed out, the object of the Courts is to prevent fraud, " the object of mercantile usages is to prevent the risk of insolveiKiy, not of fraud, and any one who attempts to follow and understand the law merchant will soon find himself lost if he begins by assuming that merchants conduct their business on the basis of attempting to insure themselves against fraudulent dealing. The contrary is the case — credit, not ' See sect. 21, ante, p. 48, and Fuentes v. Montis (18G8), L. E. 3 0. P. 268, at p. 277, per Willes, J. THE FACTORS ACT, 1889. 119 distrust, is the basis of commercial dealings ; and mercantile genius Sect. 1. consists principally in knowing whom to trust." i The first Factors Act was passed in 1823, the second in 1825, and the third in 1842. These enactments were a model of the art of saying few things in many words. They dealt with the powers of factors or other mercantile agents intrusted with the possession of goods or documents of title to goods, and their conjoint effect is carefully summed up by Blackburn, J., in Gdle v. North Western Bank (1875), L. E. 10 C. P. 354, Ex. Oh. After reviewing the history and policy of the Acts, he proceeds to say (p. 372) : " We do not think that the legislature Vished to give to all sales and pledges in the ordinary course of business the effect which the common law gives to sales in market overt. . . . The general rule of law is, that where a person is deceived by another into believing he may safely deal with property he bears the loss, unless he can shew that he was misled by the act of the true owner. The legislature seems to us to have wished to make it the law that, where a third person has intrusted goods or the docu- ments of title to goods to an agent who, in the course of such agency, sells or pledges the goods, he should be deemed by that act to have misled any one who lona fide deals with the agent, and makes a purchase from or advance to him without notice that he was not authorised to sell or to procure the advance." The Factors Act, 1877, dealt with a new subject-matter. After providing that a secret revocation of agency should be inoperative, it proceeded to deal with the case, not of agents, but of buyers or sellers left in possession of the documents of title to goods. The present Act reproduces and somewhat extends the effect of the four above- mentioned Acts.] Frdiminary. 1. For the purposes of this Act — (1.) The expression Defini- "mercantile agent" shall mean a mercantile agent having in the customary course of his business as such agent. agent authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods : This definition is new, but is mainly declaratory. It extends the construction put on the repealed Acts in so far as it applies to agents tions. Mercantile Sanders v. Maclean (1883), 11 Q. B. D., at p. 343, C. A. 120 TEE FACTORS ACT, 1889. Sect. 1. " to buy goods," and perhaps also in so far as it applies to forwarding agents.i Under the repealed Acts, the terms used were simply "person" or " agent" intrusted with the possession of goods, but it was held that the Acts only applied to mercantile transactions, and that the term " person " or " agent " did not include a mere servant or caretaker, or one who had possession of goods for carriage, safe custody, or otherwise as an independent contracting party ; but only persons whose employment corresponded to that of some known kind of com- mercial agent like that class (factors) from which the Acts took their name." Thus, a person entrusted with furniture to keep in her own house for the plaintiff was held not to be an " agent " within the meaning of the Acts ; * and a wine merchant's clerk who, as such, was possessed of delivery orders, was held not to be an agent within the meaning of the Acts, so as to be able to make a valid pledge in fraud of his master. In the latter case, Blackburn, J., remarks that the clerk " was not a mercantile agent." * It was further held, that if a mercantile agent received goods in some other capacity, the Act did not apply ; for instance, where goods were warehoused with a ware- houseman who was also a broker, it was decided that he could not pledge them in his capacity of broker.^ Under the present Act it has been held that a person employed to sell jewelry for a firm of jewellers at a small commission is not a mercantile agent.° See the chief classes of mercantile agents enumerated, and their functions defined in Story on Sale, §§ 78-118. On the other hand, it was held that the Acts applied to an isolated instance of employment, if the employment was such that persons who ordinarily carried on that kind of business would come within the Acts.' PosseBBion. (2.) A person shall be deemed to be in possession of • Qu. how far Sellings v. Russell (1875), 33 L. T. N.s. 380, and City Bank v. Barrow (1880;, 5 App. Cas. 664, are affected ? 2 Cole V. North Western Bank (1875), L. E. 10 C. P., at pp. 372, 373, per Blackburn, J. ; cf. City Bank v. Barrow (1880), 5 App. Cas., at p. 678. ' Wood V. Bowcliffe (1846), 6 Hare, 183. ' Lamb v. Attenborough (1862), 31 L. J. Q. B. 41. » CoU V. North Western Bank (1875), L. E. 10 C. P. 354, Ex. Ch. ; cf. City Bank v. Barrow (1880), 5 App. Cas., at p. 678. ' Hastings v. Pearson (1893), 1 Q. B. 62 ; see also Tremoille v. Christie, Sol. Jowrn., 1893, vol. xxxvii. p. 650. ' Eayman v. Flewker (1863), 32 L. J. C. P. 132 (pictures entrusted to insurance agent to sell on commission). THE FAGTOES ACT, 1889. 121 goods or of the documents of title to goods, where the Sect. i. goods or documents are in his actual custody or are held by any other person subject to his control or for him or on his behalf: This definition is taken from words used in sect. 4 of the Act of 1842 (5 & 6 Vict. c. 39), but it is generalised by the substitution of the word " person " for the word " agent." The probable object of this change is to make it apply to sects. 8 to 10, post, as well as to the agency sections. (3.) The expression " goods " shall include wares and Goods, merchandise : The term used in the 17th sect, of the Statute of Frauds is " goods, wares, and merchandise." This definition, therefore, probably in- corporates the numerous decisions on the meaning of those words in that Act, which are reproduced in the definition of " goods " given by sect. 62 of the Sale of Goods Act. (4.) The expression " document of title " shall include Document any bill of lading, dock warrant, warehouse-keeper's ° ' ^' certificate, and warrant or order for the delivery of goods,^ and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented : This definition is taken from sect. 4 of the Taotors Act, 1842 (5 & 6 Vict. c. 39), with the addition of the " warehouse-keeper's certificate.'' The Act of 1825 (6 Geo. 4, c. 94, s. 2) included warehouse-keepers' certificates, but the Act of 1842 omitted them, and in a case in 1878 the Lord Justices held that these documents were not documents of title." ' As to delivery orders, see Ex p. Close (188.5), 54 L. J. Q. B. 43 ; Be Cunningham & Co. (1885), 54 L. J. Oh. 44. 2 Gunn V. Bohhow, Vaughan & Co. (1878), L. E. 10 Oh. App. 491. 122 TEE FACTORS ACT, 1889. Sect 1. Cash receipts given in place of delivery orders are not documents ' of title.i Ordinarily, when the title to goods depends upon a written instru- ment, the document requires to be registered as a bill of sale, for the purposes of the Bills of Sale Acts ; but by sect. 4 of the Bills of Sale Act, 1878, ^osi, p. 155, It is provided that the term bill of sale shall not include " transfers of good, in the ordinary course of business of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, warehouse-keepers' certificates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or delivery, the possessor of such document to transfer or receive goods thereby represented." And by the Bills of Sale Act, 1890 (53 & 54 Vict. c. 53), as amended by the Bills of Sale Act, 1891 (54 & 55 Vict, c. 35), mercantile letters of hypothecation are exempted from the provisions of the Bills of Sale Acts. As to the mode of transferring documents of title, see sect. 11, post, p. 131, Pledge, (5.) The expression " pledge " shall include any con- tract pledging, or giving a lien or security on, goods, whether in consideration of an original advance or of any further or continuing advance or of any pecuniary liability : This definition is new. Its terms seem wide enough to include a mortgage, that is, a contract transferring conditionally the general property in goods in consideration of a loan, and also perhaps a letter of hypothecation without possession. The words " any pecuniary liability " are very wide, and are probably intended to meet cases such as the granting of a letter of credit to be operated on by bills of exchange in consideration of the pledge of goods or documents. The language of this definition should be compared with the language used in sect, 4 of the Act of 1842 (5 & 6 Vict, c. 39), Person. (^0 ^^^ expression " person " shall include any body of persons corporate or unincorporate, • Kemp V. Folk (1882), 7 App. Cas. 573, at p. 585, per Lord Blackburn. As to mate's receipts, see Cowasjee v. Thompeon (1845), 11 Moore, P. C. 165 ; Hathering v. Laing (1873), L. E. 17 Eq. 92. THE FACTOBS ACT, 1889. 123 Dispositions hf Mercantile Agents. Sect. 2. 2. — (1.) Where a mercantile agent is, with the con- Powers of sent of the owner, in possession of goods or of the ^"^^th documents of title to goods, any sale, pledge, or other respect to disposition of the goods, made by him when acting in of goods. the ordinary course of business of a mercantile agent, shall, subject to the provisions of this Act, be as valid as if he were expressly authorised by the owner of the goods to make the same; provided that the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make the same. See the terms " mercantile agent," " document of title," and " pledge" defined by sect. 1, ante, p. 119. This sub-section supersedes and reproduces, in altered language, sects. 2 and 4 of the Act of 1825 (6 Geo. 4, c. 94), and sect. 4 of the Act of 1842 (5 & 6 Vict. c. 39). It no -longer requires the goods or documents to be " intrusted " to the agent, but it suflSces that they are in his possession with the owner's consent. How far this alteration of language extends the operation of the new Act is not very clear ; but if it was intended to alter the rule that where a mercantile agent was intrusted with goods in some other capacity, he could not sell or pledge them contrary to instructions, it is a pity that so important a change in the law has not been more clearly emmciated.^ Suppose a house were let furnished to a man who happened to be an auctioneer. Could he sell the furniture by auction and give a good title to the buyers ? Surely not. It was held under the repealed Acts that the mercantile agenf s jyjwers were not exhausted by a single transaction. Thus, where the consignee of cotton pledged the bill of lading with a broker, authorising him to seU the cotton, and then with the broker's consent pledged the net proceeds to D., it was held that the latter transaction was valid as > As to former rale, see Monk v. Whittenbury (1831), 2 B. & Ad. 484 (flour factor and wharfinger); Cole v. North Western Bank (1875), L. E. 10 C. P. 354 (warehouse-keeper and broker). 124 THE FACTORS ACT, 1889. Sect. 2. Notice. Eevocation of consent. Derivative documents. well as the former one.i It was also held that the Acts extended to cases where the agent had by fraud induced his principal to intrust him with the goods or the documents of title to them.^ These cases, no doubt, are still good law. As to the consideration necessary to support a sale, pledge, or other disposition, see sect. 5, post, p. 126 ; and as to pledges for antecedent debts or liabilities, see sect. 4, post, p. 125. The term "notice " in this section, probably means actual, though not formal, notice ; that is to say, either knowledge of the facts, or a suspicion of something wrong, combined with a wilful disregard of the means of knowledge. The same construction would probably be put on it as upon the term " notice " in sect. 29 of the Bills of Exchange Act, 1882, or in sects. 37 and 49 of the Bankruptcy Act, 1883.* (2.) "Where a mercantile agent has, with the consent of the owner, been in possession of goods or of the documents of title to goods, any sale, pledge, or other disposition, which would have been valid if the consent had continued, shall be valid notwithstanding the deter- mination of the consent : provided that the person taking under the disposition has not at the time thereof notice that the consent has been determined. See last note. This sub-section reproduces in altered language the provisions of sect. 2 of the Factors Act, 1877 (40 & 41 Vict. c. 39), which was passed to override the decision in Fuentes v. Montis, where it was held that a mercantile agent was not intrusted with goods or documents within the meaning of the earlier Acts if his authority had been revoked.* (3.) Where a mercantile agent has obtained possession ' Fortalis v. Tetley (1867), L. E. 5 Eq. 140. ' Cole V. North Western Sanh (1875), L. E. 10 C. P., at p. 373, citing Baines v. Swainson (1863), 32 L. J. Q. B. 281, and VicJcers v. Hertz (1871), L. B. 2Sc. App. Cas. 113. ^ See the term discussed, Navulshaw v. Brownrigg (1852), 21 L. J. Ch. 908 (Factors Act); Raphael v. Banh of England (1855), 17 C. B., at p. 174, per Willes, J. (bill of exchange) ; Ex p. Snowball (1872), L. E. 7 Oh. App., at p. 549 (act of bankruptcy). * Fwnies v. Montis (1868), L. E. 3 0. P. 268 (revocation of agency unknown to pledgee), aflBrmed, L. E. 4 C. P. 93 Ex. Ch. THE FACTORS ACT, 1889. 125 of any documents. of title to goods by reason of his being Sects. 2-4. or having been, with the consent of the owner, in pos- session of the goods represented thereby, or of any other documents of title to the goods, his possession of the first-mentioned documents shall, for the purposes of this Act, be deemed to be with the consent of the owner. This sub-section reproduces in somewhat diiferent language a provision in sect. 4 of the Factors Act, 1842 (5 & 6 Vict. c. 39), which was intended to alter the law as laid down in Phillips v. Eufh, and Hatfield v. Phillips?- In the latter case it was held that a person intrusted with a bill of lading for the purpose of selling the goods mentioned in it, was not, in consequence of being so intrusted, to be considered as intrusted with the dock warrant, notwithstanding that his possession of the bill of lading enabled him to obtain the dock warrant. (4.) For the purposes of this Act the consent of the Presump- owner shall be presumed in the absence of evidence to '""' the contrary. This sub-section reproduces in somewhat different language the concluding paragraph of sect. 4 of the Factors Act, 1842. 3. A pledge of the documents of title to goods shall Effect of be deemed to be a pledge of the goods. dictmenfs of title. This section is taken from a paragraph in sect. 4 of the Factors Act, 1842 (5 & 6 Vict. c. 39). See " pledge," defined by sect. 1, ante, p. 122. 4. Where a mercantile agent pledges goods as security Pledge for for a debt or liability due from the pledgor to the pledgee before the time of the pledge, the pledgee shall acquire no further right to the goods than could have been enforced by the pledgor at the time of the pledge. ■ See Cole v. North Western Banh (1875), L. E. 10 C. P., at p. 370, commenting on PhilUpa v. Huth (1840), 6 M. & W. 572; Hatfield v. Phillips (1842), 9 M. ife W. 647 ; (1845) 14 M. & W. 665. antecedent 126 THE FAGTOES ACT, 1889. Sects. 4, 5. This section reproduces in altered language the clumsily worded sect. 3 of the Factors Act, 1825 (6 Geo. 4, c. 94) as read with the proviso contained in sect. 3 of the Factors Act, 1842 (5 & 6 Vict, c. 39). The substitution of the words « debt m- liability " for " ante- cedent debt" is material.! The use of the word "due," though appropriate to the term "debt," seems inappropriate to the term " liability." The section should perhaps be read as if it ran " debt due from or liability incurred by," &c. The object of this section seems to be to draw a marked distinction between past and present or future considerations. In terms it applies only to pledges of goods, but, having regard to the language of sect. 3, it may be intended to apply also to pledges of documents. Eights ac- 5. The Consideration necessary for the validity of a e^Lnge ^^®» pledge, or other disposition, of goods, in pursuance of goods or of this Act, may be either a payment in cash, or the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, or any other valuable consideration ; but where goods are pledged by a mercantile agent in consideration of the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, the pledgee shall acquire no right or interest in the goods so pledged in excess of the value of the goods, documents, or security when so delivered or transferred in exchange. By sect. 4 of the Factors Act, 1842 (5 & 6 Vict. c. 39) it was provided, inter dlioL, that " any payment made, whether by money or bills of exchange, or other n^otiable security, shall be deemed and taken to be an advance within the meaning of this Act." The first pars^raph of the present section considerably extends the scope of the old enactment, by substituting " valuable consideration " for an " advance " as above defined. See the definition of " pledge " in sect. 1, ante, p. 122. The second paragraph of the section reproduces in somewhat ' For cases on the repealed sections, see Jewan v. Whitworth (1866), L. K. 2 Eq. 692 ; Macnee v. Gont (1867), L. B. i Eq. 315 ; Kaltenbach v. Lewis (1885), 10 App. Cas. 617. THE FACTORS ACT, 1889. 127 different language the provisions of sect. 2 of the Factors Act, 1842, Sects. 5-7. which was intended to protect exchange of goods and securities made in good 6itli, and to alter the law as laid down in Taylor t. Kymer and Bonzi v. Stewart?- 6. For the purposes of this Act an agreement made Agree- with a mercantile agent through a clerk or other person aiongh authorised in the ordinary course of business to make clerks, &e contracts of sale or pledge on his behalf shall be deemed to be an agreement with the agent. This section is taken from, and generalises, a patagraph in sect. 4 of the Factors Act, 1842 (5 & 6 Vict. c. 39). 7. — (1.) Where the owner of goods has given posses- Provisions sion of the goods to another person for the purpose of ^^^""n^ consignment or sale, or has shipped the goods in the consignees. name of another person, and the consignee of the goods has not had notice that such person is not the owner of the goods, the consignee shall, in respect of advances made to or for the use of such person, have the same lien on the goods as if such person were the owner of the goods, and may transfer any such lien to another person. (2.) Nothing in this section shall limit or affect the validity of any sale, pledge, or disposition, by a mercantile agent. The first suh-section reproduces in different language the provisions of sect. 1 of the Factors Act, 1825.^ It is to he noted that the section applies only to goods and not to documents of title, and to cases » See CWe V. North Wettem Bank (1875), L. B. 10 C. P., at p. 370, commentiag on Taylor v. Kymer (1832), 3 B. & Ad. 320 ; Bonzi v. Slmaart (1842), 4 M. & Gr. 295. 2 See that enactment discussed in Cole v. North Western Bank (1875), L. E. 10 C. P., pp. 361-367; and Johmon v. Credit Lyonnais (1877), 3 C. P. D., at pp. 44, 45. 128 THE FAGTOBS ACT, 1889. Sects. 7, 8. wliere the consignee has not notice that the consignor is not the owner. Lord Blackburn raised a doubt on the repealed enactment whether "notice" was co-extensive with knowledge.^ The term "advance" must probably be interpreted by the light of sect. 5, ante, p. 126. The second sub-section shews that the present section is to be con- strued as amplifying, and not as derogating from, the powers of mercantile agents under sect. 2, ante, p. 123. Sect. 13, post, p. 132, further saves the common law powers of factors and agents of that class. As to a factor's or consignee's lien, see Story on Sale, § 97. Dispositions hy Sellers and Buyers of Goods. Disposition 8. Where a person, having sold goods, continues, or iJinaininff ^^' ^° possossion of the goods or of the documents of title 8ion, in posses- to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, or under any agreement for sale pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same. This section, which is now reproduced by sect. 25 (1) of the Sale of Goods Act, was substituted for sect. 3 of the Factors Act, 1877 (40 & 41 Vict. c. 39), which altered the law as laid down in Johnson v. Credit Lyonnms.^ It was there held that if the buyer, for his own convenience, left the goods and documents of title in the hands of the seller, who fraudulently resold or pledged them, he could nevertheless recover the goods from the innocent purchaser or pledgee. The Act of 1877 only applied to documents of title. The present section extends the principle of that enactment by applying to goods as well as to documents of title. ' Mildred v. Maepons (1883), 8 App. Cas., at p. 885. ' Johnson v. Credit Lyonnais (1877), 3 C. P. D. 32, 40, C. A. THE FACTORS ACT, 1889. 129 The provisions of sect. 5, ante, p. 126, as to consideration, clearly Sects. 8, 9. apply to tMs section ; but the provisions of sect. 4 (pledge for ante- cedent debt) appear only to apply when the pledge is effected through a mercantile agent. The Sale of Goods Bill originally proposed to repeal this and the Non-re- two following sections ; but the repeal was afterwards omitted, in peal, order that the draftsman of the Factors Acts might be consulted ; and the matter was left over to be dealt with by a Statute Law Eevision Act. 9. Where a person, having bought or agreed to buy DiapoBitioii goods, obtains with the consent of the seller possession obtaining of the goods or the documents of title to the goods, the possession. delivery or transfer, by that person or by a mercantile agent acting for him, of the goods or documents of title, under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other disposi- tion thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner. This section, which is now reproduced by sect. 25 (2) of the Sale of Goods Act, was substituted for sect. 4 of the Factors Act, 1877 (40 & 41 Vict. c. 39). The latter enactment applied only to documents of title. The present section applies to the goods themselves as well as to documents of title. As to the reason for its non-repeal by the Sale of Goods Act, see note to last section. The common law rules which preceded these enactments are thus stated by Blackburn, J. : " It has been repeatedly decided that a sale or pledge of a delivery order or other document of title (not being a bill of lading) by the vendee does not defeat the unpaid vendor's rights, because the vendee is not intrusted as an agent.' And it may be > Cf. Jenhyns v. Ushome (1844), 7 M. & Gr. 678 ; McEwan v. Smith (1849), 2 H. L. C. 309. K 130 TEE FACTORS ACT, 1889. Sects. 9, 10, observed that in many of such, cases in which money has been advanced to the buyer on the faith of the documents of title, the buyer must have been a person who carried on business as a commission merchant ; yet it never seems to have occurred to any one that that fact made any difference. So it has been repeatedly held that when either the goods or documents of title are obtained from the owner (not on a contract of sale good till defeated, though defeasible on the ground of fraud, but by some trick), a purchaser or pledgee acquires no title, for the trickster is not an ' agent intrusted ' with the possession." * It is submitted that the last proposition is not affected by the section ; for the foundation of the rule is that there is no real consent. The section, however, would clearly apply to cases where there is a de facto contract, though defeasible on the ground of fraud : see ante, p. 52. So, too, it applies where there is a de facto contract of sale between the original seller and buyer, though that contract might be ineffectual for non-compliance with sect. 17 of the Statute of Frauds,^ now reproduced in sect. 4 of the Sale of Goods Act. The section extends to a person in possession of goods under a hire- purchase agreement. 10. Where a document of title to goods has been lawfully transferred to a person as a buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, the last-mentioned transfer shall have the same effect for defeating any vendor's lien or right of stoppage in transitu as the transfer of a bill of lading has for defeating the right of stoppage in transitu. This section, which is now reproduced and developed by sect. 47 of the Sale of Goods Act, was substituted for sect. 5 of the Factors Act, 1877 (40 & 41 Vict. c. 39). It applies to all the documents of title mentioned in sect. 1, ante, p. 121, the common law rules relating to the effect of the transfer of a bill of lading on the seller's right of lien or stoppage in transitu, as to which, see ante, p. 86. Effect of transfer of documents on seller's lien or right of stoppage in transitu. ' Coh V. North Western Bcmk (1875), L. E. 10 C. P., at p. 373, citing for last proposition, Kitigsford v. Merry, 1 H. & N. 503, and Eardman v. Booth, 1 H. & 0. 803. See those cases discussed, ante, pp. 52, 58. " Hugill v. Masker (1889), 22 Q. B. D. 364, C. A. ' Lee V. Butler (1893), 2 Q. B. 318 ; Helby v. Matthews, W. N. 1894, p. 88, 0. A. TEE FACTORS ACT, 1889. 131 To some extent this section covers the same ground as the preceding Sects. 10- seotion. But sect. 9 requires that the transferee shall have no notice l^* of the seller's lien or other rights, because it applies to cases where the buyer has obtained the goods or documents under a contract voidable on the ground of fraud. The present section omits the requirement as to absence of notice. The mere fact that the price is unpaid does not make it a &aud to transfer the goods or documents so as to defeat the seller's lien or right of stoppage in transitu. As to the reason for not repealing this section by the Sale of Goods Act, see note to section 8, ante, p, 129. 11. For the purpose of this Act, the transfer of a Mode of document may be by endorsement, or, where the docu- ^n^^docu- ment is by custom or by its express terms transferable ments. by delivery, or makes the goods deliverable to the bearer, then by delivery. See " document of title " defined, ante, p. 121. This section is taken from words used in sect. 5 of the Factors Act, 1877 (40 & 41 Vict. c. 39), which are now generalised by being put into a separate section. 12. — (1.) Nothing in this Act shall authorise an agent Saving for to exceed or depart from his authority as between him- tmeoVner. self and his principal, or exempt him from any liability, civil or criminal, for so doing. As to the criminal liability of factors or agents misappropriating goods or documents of title, see the 24 & 25 Vict. c. 96, ss. 77, 78, 79, and Stephen's Digest of the Criminal Law, arts. 347, 348. (2.) Nothing in this Act shall prevent the owner of goods from recovering the goods from an agent or his trustee in bankruptcy at any time before the sale or pledge thereof, or shall prevent the owner of goods pledged by an agent from having the right to redeem the goods at any time before the sale thereof, on satisfy- ing the claim for which the goods were pledged, and paying to the agent, if by him required, any money in 132 TEE FACTORS ACT, 1889. Sects. 12, respect of which the agent would by law be entitled to _:! retain the goods or the documents of title thereto, or any of them, by way of lien as against the owner, or from recovering from any person with whom the goods have been pledged any balance of money remaining in his hands as the produce of the sale of the goods after deducting the amount of his lien. As a general rule, goods or documents of title, held by an agent for his principal, are considered as trust property, and do not pass to the agent's trustee in bankruptcy, though in some cases the reputed ownership clauses might apply : see Bankruptcy Act, 1883, s. 44. (3.) Nothing in this Act shall prevent the owner of goods sold by an agent from recovering from the buyer the price agreed to be paid for the same, or any part of that price, subject to any right of set-off on the part of the buyer against the agent. As to the buyer's right of set-off against an agent with whom he dealt, under the belief that he was a principal, see Kaltenhach v. Lewis (1885), 10 App. Cas. 617 ; Coohe v. EshOiy (1887), 12 App. Cas. 271. Saving lor 13. The provisions of this Act shall be construed in common ,.„ . , . -, law powers ampuncation and not m derogation or the powers es- of agent, eroiseable by an agent independently of this Act. This section is new. It recognises, what the judges have frequently pointed out, that the Factors Acts are partly declaratory and partly enacting.! In dealing with the exceptions to the general rule, Nemo dat quod non habet (ante, p. 49), Willes, J., observes : " A third case where a man may convey a better title to goods than he himself had is where an agent, who carries on a public business, deals with the goods in the ordinary course of it, though he has received secret instructions from his principal to deal with them contrary to the ordinary course of that trade. In that case he has an ostensible authority to deal in such a way with the goods as agents ordinarily ' See Cole v. North Western Bank (1875), L. B. 10 C. P., at p. 360, et seq. TEE FACTORS ACT, 1889. 133 deal with them, and if he deals with them in the ordinary way of the Sects. 13- trade he binds his principal." ^ 17. 14. The enactments mentioned in the schedule to Repeal. this Act are hereby repealed as from the commencement of this Act, but this repeal shall not affect any right acquired or liability incurred before the commencement of this Act under any enactment hereby repealed. 15. This Act shall commence and come into operation commence- on the First day of January, One Thousand Bight Hundred ™^°*- and Ninety. 16. This Act shall not extend to Scotland. Extent of Act. The result of the exclusion of Scotland from this Act is, that the Factors Acts, 1823, 1825, 1842, and 1877, though repealed as to England and Ireland, as from the 1st of January, 1890, still continued to apply to Scotland. Perhaps, however, the Factors (Scotland) Act, 1890, repeals them by implication as from the commencement of that act, namely 14th of August, 1890. It may be noted that their pro- visions are more nearly declaratory of Scotch common law than they were of English common law.' See the subject discussed. Bell's Principles, 9th ed., p. 824, ef seq. 17. This Act may be cited as the Factors Act, 1889. Short title. » Fuentes v. Montis (1868), L. E. 3 C. P. 268, at p. 277 ; cf. Johnson v. Ora.it Lyonnais Q.87T), 3 C. P. D., at pp. 37-40. ' Vickers v. Hertz (1871), L. E. 2 So. App. 113, at p. 119. 134 THE FACTORS ACT, 1889. Section 14. SCHEDULE.! Enactments Eepealed. Session and Chapter. Title. Extent of Bepeal. 4 Geo. IV. c. 83 6 Geo. IV. c. 94 5 & 6 Vict. 0. 39 40 & 41 Vict. c. 39. An. Act for the better pro- tection of the property of merchants and others who may hereafter enter into contracts or agree- ments in relation to goods, wares, or merchandise entrusted to factors or agents. An Act to alter and amend an Act for the better pro- tection of the property of merchants and others who may hereafter enter into contracts or agree- ments in relation to goods, wares, or merchandise entrusted to factors or agents. An Act to amend the law relating to advances bonil fide made to agents en- trusted with goods. An Act to amend the Factors Acts. The whole Act. The whole Act. The whole Act. The whole Act. * This Schedule repeals as to England and Ireland, but not as to Scotland, the Factors Acts of 1823, 1825, 1842, and 1877. ( 135 ) THE FACTOES (SCOTLAND) ACT, 1890. (53 & 54 Vict. o. 40). [14tll August 1890.] 53 & 54 Be it enacted by the Queen's most Excellent Majesty, ^"'''' "• ^''' by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. Subject to the following provisions, the Factors AppUca- Act, 1889, shall apply to Scotland. &T3 Vi« (1.) The expression " lien " shall mean and include c. 45 to right of retention ; the expression " vendor's lien " shall mean and include any right of retention competent to the original owner or vendor; and the expression "set-off" shall mean and include compensation. (2.) In the application of section five of the recited Act, a sale, pledge, or other disposition of goods shall not be valid unless made for valuable con- sideration. 2. This Act may be cited as the Factors (Scotland) short title. Act, 1890. ( i36 ) APPENDIX I.— STATUTES. The former misuse in sale of stolen horses. In what manner horses shall be sold in fairs or markets. AN ACT AGAINST THE BUYING OP STOLEN HORSES (1555).! (2 & 3 Phil. & Mae. c. 7.) Forasmuch as stolen horses, mares, and geldings, by thieves and their confederates, be for the most part sold, exchanged, given, or put away in houses, stables, back-sides, and other secret and piivy places of markets and fairs, and the toU also privily paid for the same, whereby the true owner thereof, being not able to try the falsehood and covin betwixt the buyer and seller of such horse, mare, or gelding, is by the common law of this realm without remedy : ' Sect. 2. — ^Be it therefore enacted by the authority of this present parliament, — That the owner, governor, ruler, fermor, steward, bailiff, or chief.keeper of every fair and market overt within this realm, and other the Queen's dominions, shall before the feast of Easter next, and so yearly, appoint and limit out a certain and special open place within the town, place, field, or circuit, where horses, mares, geldings, and colts have been and shall be used to be sold in any fair or market • Taken from Pickering's edition of the Statutes. See Moran v. Pitt (1873), 42 L. J. Q. B. 47, and ;. 12.] liecited Acts ex- tended to contracts for goods of £10 or upwards, although the deli- very be not made. LORD TENTEEDEN'S ACT. (9 Geo. 4, o. 14.) An Act for rendering a written memorandum necessary to the validity of certain promises and engagements. Sect. 7. — And whereas by an Act passed in England in the twenty- ninth year of the reign of King Charles the Second, intituled an Act for the prevention of frauds and perjuries, it is, among other things, enacted that from and after the 24th day of June, 1677, no contract, for the sale of any goods, wares, and merchandises, for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorised. And whereas a similar enactment is contained in an Act passed in Ireland in the seventh year of the reign of King William the Third : And whereas it has been held, that the said recited enactments do not extend to certain executory contracts for the sale of goods, which nevertheless are within the mischief thereby intended to be remedied : and it is expedient to extend the said enactments to such executory contracts : Be it enacted, That the said enactments shall extend to all con- tracts for the sale of goods of the value of ten pounds sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof or rendering the same fit for delivery. JSfote. — See note to Statute of Frauds, s. 17, ante, p. 143, and Scott v. Eastern Counties Railway (1843), 12 M. & W. 33. This section is repealed by the Sale of Goods Act and reproduced in sect. 4 (2), ante^ p. 12. STATUTES. 149 THE BILLS OF LADING ACT, 1855. (18 & 19 Vict. c. 111.) An Act to amend the Law relating to Bills of Lading. [14th August, 1855.1 Whereas by the custom of merchants a bill of lading of goods being transferable by endorsement, the property in the goods may thereby pass to the endorsee, but nevertheless all rights in respect of the contract contained ia the bill of lading continue in the original shipper or owner, and it is expedient that such rights should pass with the property; and whereas it frequently happens that the goods in respect of which bills of lading purport to be signed, have not been laden on board, and it is proper that such bills of lading in the hands of a tend fide holder for value, should not be questioned by the master or other person signing the same on the ground of the goods' not having been laden as aforesaid: Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — Sect. 1. — Every consignee of goods named in a bill of lading, and Eig^ltg every endorsee of a bill of lading to whom the property in the goods under bills therein mentioned shall pass, upon or by reason of such consign- of lading ment or endorsement, shall have transferred to and vested in him ° ^'^ _ consignee all rights of suit, and be subject to the same liabilities in respect of ^^ endorsee. such goods as if the contract contained in the bill of lading had been made with himself. Sect. 2. — Nothing herein contained shall prejudice or affect any right of stoppage in transitu, or any right to claim freight against the afeeot right original shipper or owner, or any liability of the consignee or en- of stoppage dorsee, by reason or in consequence of his being such consignee or «" transitu endorsee, or of his receipt of the goods by reason or in consequence °^ t!?^\,i of such consignment or endorsement. for freight. Note. — As to non-liability of pledgee of bill of lading for freight, see Sewdl V. Burdick (1884), 10 App. Cas. 74. As to pledge of bill of lading and conversion before plaintiff's title accrued, see Bristol Bank V. Midland Railway (1891), 2 Q. B. 653, C. A. Sect. 3. — Every bill of lading in the hands of a consignee or en- dorsee for valuable consideration representing goods to have been j^'^lnain Bill of 150 APPENDIX I. 18 & 19 Tict. c. 111. hands of consignee, &c., con- clusive evidence of the ship- ment as against master, &c. shipped on board a vessel, shall be conclusive evidence of such ship- ment as against the master or other person signing the same, not- withstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same that the goods had not been in fact laden on board ; provided, that the master or other person so signing may exonerate himself in respect of such misrepresentation by shewing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims. Note. — A bill of lading, says Lord Blackburn, " is a writing signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of the goods, and undertaking to deliver them at the end of the voyage, subject to such conditions as may be mentioned in the bill of lading." ^ A " through bill of lading " is a bill of lading " made for the car- riage of goods from one place to another by several shipowners or railway companies." ^ It seems doubtful how far the Act applies to these documents which are of modern origin.^ At common law the property in the goods could be transferred by the indorsement of the bill of lading, but the contract created by the bill of lading could not, therefore the endorsee could not sue on the contract in his own name.* The Act of 1855 confers this right while confirming the common law rights. " A cargo at sea," says Bowen, L.J., "while in the hands of the carrier, is necessarily in- capable of physical delivery. D\u:ing this period of transit and voyage, the bill of lading by the law merchant is universally recognised as its symbol, and the endorsement and delivery of the bill of lading operates a symbolical delivery of the cargo. Property in the goods passes by such endorsement and delivery of the bill of lading when- ever it is the intention of the parties that the property should pass, just as under similar circumstances the property would pass by an actual delivery of the goods." = He then goes on to say that by the inveterate practice of merchants, bills of lading are made out in three or more parts, one part being usually retained by the captain, the • Blaclcliurn on Sale, p. 275 ; see Anson on Contracts, 5th ed., p. 239. " Sorutton on Charter Parties, 2nd ed., p. 52. ^ See Scrutton, auprk, and Law Quarterly Beview, vol. y. p. 424, aud vol. vi. p. 289, where the effect of these instruments is fully discussed. * Thompson v. Dominy (1845), 14 M. & W. 403. = Sanders v. Maclean (1883), 11 Q. B. D. 327, at p. 341. STATUTES. 151 others being handed to the shipper. This practice has often given 18 & 19 ' rise to frauds. The decisions on bills of lading which are very Vict. c. 111. numerous are collected in the notes to Lichlarrow v. Mason, 1 Smith, Lead. Gas., p. 737 ; and the subject is fully dealt with in Scrutton on Oharterparties and Bills of Lading ; but the following salient points may be noted. (1.) The voyage is deemed to continue, and the bill of lading to be alive as long as the goods are held on behalf of the master under a lien for freight, even though they have been landed."- (2.) When two or more parts of a bill of lading are transferred to two or more different hand fide transferees for value, the property in the goods passes to the transferee who is first in point of time.^ (3.) But, nevertheless, the person who has the custody of the goods may safely deliver them to the person who first presents the bill of lading .(or a part thereof) to him, provided he acts in good faith and without notice of any prior claim.^ (4.) A contract to deliver a bill of lading is complied with by delivering one part, though the others are not accounted for.* (5.) Escept for the purposes of the Factors Act and of defeating the right of stoppage m transitu, the transferee of a bill of lading acquires no better title to the goods represented thereby than the transferor had. In this respect a bill of lading differs from a bill of exchange, or rather it resembles an overdue bill of exchange, which can only be negociated subject to all equities attaching to it.^ As to the effect of the transfer of a bill of lading on the right of stoppage in transitu, see ante, p. 86. As to the Factors Act, see ante, p. 130. Where laws conflict, stipulations in a bill of lading must be construed according to the lex loci contractus, which prima, facie only is the law of the place where the contract was entered into.^ > Sarher v. Meyerstein (1870), L. K. 4 H. L. 317. ' Barber v. Meyerstein, suprk. ' Glyn, Mills & Co. v. East & West India Docks (1882), 7 App. Caa. 591. * Sanders v. Maclean (1883), 11 Q. B. D. 327, 0. A. * Anson on Contracts, 5th ed., p. 239 ; Gurney v. Behrend (1854), 3 E. & B. 622. As to fraud, however, see The Argentina (1867), L. E. 1 Adm. 370, and Scrutton on Charter Parties, 2nd ed., p. 149. « Be Missouri Steamship Co. (1889), 42 Oh. D. 321, at p. 328, 0. A. 152 APPENDIX I. THE LAECENT ACT, 1861. (24 & 25 Vict. c. 96.) An Act to consolidate and amend the Statute Law of England and Ireland relating to Larceny and other similar offences. Revesting of property on convic- tion of offender. [Modified by sect. 24 (2) of Sale of Goods Act, ante, p. .^3.] Proviso as to negotiable securities. As to restitution and recovery of stolen property. Sect. 100. — If any person guilty of any such felony or misde- meanour as is mentioned in this Act, in stealing, taking, obtaining, extorting, embezzling, converting or disposing of, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, shall be indicted for such offence, by or on the behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative ; and in every case in this section aforesaid the Court before whom any person shall be tried for any such felony or misdemeanour shall have power to award from time to time writs of restitution for the said property or to order the restitu- tion thereof in a summary manner : Provided, that if it shall appear before any award or order made that any valuable security shall have been lond fide paid or discharged by some person or body corporate, liable to the payment thereof, or being a negotiable instrument shall have been lond fide taken or received by transfer or delivery, by some person or body corporate, for a just and valuable consideration, with- out any notice or without any reasonable cause to suspect that the same had by any felony or misdemeanour been stolen, taken, obtained, extorted, embezzled, converted, or disposed of, in such case the Court shall not award or order the restitution of such security: Provided also, that nothing in this section contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker, or other agent intrusted with the possession of goods or docu- ments of title to goods for any misdemeanour against this Act. ^o Gorrissen v. Perrin (J 857), 27 L. J. C. P. 29. ]76 APPENDIX II. Stipula- tions judicially construed. " 50 cases of tallow to be delivered on the safe arrival of the ship Elgin:' -^ " The cotton to be taken from the quay." ^ " 600 tons of nitrate of soda expected to arrive at port of call per Precu/rsor." ^ As to priority of delivery and payment. " Payment, bill at two months from the date of landing." * " To be paid for by cash in one month." * " Delivery forthwith ; payment, cash in 14 days from the making of the contract." ^ Delivery order running, " we engage to deliver on presentation of this document." ' " To be free delivered and paid for in 14 days in cash." ' " The balance in cash on right delivery at Eangoon." ' " Freight to be payable on right delivery of the cargo." i" " Payment to be made in net cash in London in exchange for bills of lading of each cargo or shipment." ^^ As to time of delivery, i.e. " Delivery at buyer's option in all April or sooner." ^ " 10 tons of oil to be delivered within the last 14 days of March." ^^ " 5 tons oilcake to be put on board directly." " " Delivery forthwith." « Goods to be delivered " as required." ^^ » Hah V. Bawson (1858), 27 L. J. 0. P. 189. 2 Neill V. Whitworth (1865), 34 L. J. 0. P. 155, affirmed by Ex. Ch. (1866), L. R. 1 C. P. 684. » Smith V. Myers (1871), L. E. 7 Q. B. 139, Ex. Ch. ' Alexander v. Gardner (1835), 1 Bing. N. 0. 671. » Spartali v. Beneche (1850), 10 C. B. 212; but see Field v. Lelean (1861), 30 L. J. Ex. 168, Ex. Ch., as to usage. = Staunton v. Wood (1851), 16 Q. B. 638. ' BaHlett v. Holmes (1853), 22 L. J. 0. P. 182. « Godts V. Bose (1855), 17 C. B. 229. 9 Calcutta Co. v. Be Mattos (1863), 32 L. J. Q. B. 322. " Paynter v. James (1867), L. K. 2 C. P. 348. " Sanders v. Maclean (1883), 11 Q. B. D. 327, C. A. " Cox V. Todd (1825), 7 D. & R. 131. " Startup V. Macdonald (1843), 6 M. & G. 593, Ex. Ch. (tender at 8.30 on Saturday night). " Duncan v. Topliam (1849), 8 C. B. 225. " Staunton v. Wood (1851), 16 Q. B. 638. '" Jones V. Giblons (1853), 8 Exoh. 920. NOTES. 177 " Delivering on April 17th, complete 8tli May." i Stipula- " The lots to be cleared away within 3 days after the sale at the tions purchaser's expense." ^ judicially " To be finished as soon as possible." ' construed. As to cost of delivery. " Free on board a foreign ship." * " Free on board," or, " F. 0. B." ^ " The cotton to be taken from the quay." ^ Goods to be taken "from the deck." ' 0. F. I. = at a price to cover " cost, freight, and insurance." ' Delivery on payment of freight " and other conditions as per charter- party." s As to price. " 2^ per cent, discount for cash, the duty to be deducted." i" "Market value."" " Terms — net cash, to be paid within six to eight weeks from date hereof." 12 " Without reserve." '^ " The highest bidder to be the purchaser." '* " Cash, or approved banker's bills." 1° As to quantity. " 18 pockets Kent hops." i' " 1000 bales of gambler." " ' Coddington v. Paleologo (1867), L. K. 2 Ex. 193. ' Woolfe V. Home (1877), 2 Q. B. D. 355, 0. A. ' Hydraulic Co. v. McHaffie (1878), 4 Q. B. D. 670, C. A. * Waekerhartn v. Masson (1812), 3 Camp. 270. * Oowaajee v. Thompson (1845), 5 Moore, P. O. C. 165, see at p. 173 ; Brovm v. Hare (1858), 27 L. J. Ex., at p. 377 ; Stock v. Inglis (1884), 12 Q. B. D. 564, at p. 573 ; affirmed (1885), 10 App. Caa. 268. ' NeiU V. WMtworth (1865), 34 L. J. C. P. 155 ; affirmed (1886), L. E. 1 C. P. 684, Ex. Ch. ' Playford v. Mercer (1870), 22 L. T. n.s. 41. * Ireland v. Livingston (1872), L. E. 5 H, L., at p. 406. » Steamship 'Counly of Lancaster' v. Sharp (1889), 24 Q. B. D. 158. " Smith V. Blandy (1825), E. & M., at p. 260. " Orchard v. Simpson (1857), 2 C. B. n.s. 299. '=> Ashforth V. Bedford (1873), L. E. 9 C. P. 20. i» Thornett v. Haines (1846), 15 M. & "W. 367. '* Green v. Baverstock (1863), 32 L. J. 0. P. 181. " Smith V. Mercer (1867), L. E. 3 Ex. 51. " Spicer v. Cooper (1841), 1 Q. B. 424. " Gorrissen v. Perrin (1857), 27 L. J. C. P. 29. N 178 APPENDIX II. Stipula- tions judicially construed. "Cargo." I " A full and complete cargo of sugar and molasses." ^ " A small cargo of lath-wood (specifying lengths), in all about 60 cubic fathoms." * " A cargo of from 2500 to 3000 barrels (seller's option) American petroleum." * "About 300 quarters more or less of foreign rye shipped at Hamburg." ^ " Say from 1000 to 1200 gallons per month." » " Say not less than 100 packs." ' " The quantity to be taken from the bill of lading." * " We hold to your order about 30 tons Saint Petersburg hemp." " 100 tons of Wallsend coals, more or less." i" " Say about 600 red pine spars averaging 16 inches." " " 25 tons, more or less, Penang pepper ; name of vessel or vessels to be declared within 60 days from date of bill of lading." '^ " About 150 tons of scrap iron." i' "The whole of the steel required for the Forth Bridge. The estimated quantity we understand to be 30,000 tons, more or less." " As to quality, &c., i.e. " With all faults." >6 Carriage to be built " to meet my convenience and taste." i^ ' Anderson v. Morrice (1876), 1 App. Gas. 713 ; Colonial Ins. Co. v. Adelaide Ins. Co. (1886), 12 App. Cas., at pp. 129, 130. " Cutlihert v. Gmrnmng (1855), 11 Exoh. 405, Ex. Ch. ' Kreuger v. Blanch (1870), L. K. 5 Ex. 179 ; but see Ireland v. Uvingiton (1872), L. R. 5 H. L., at pp. 405, 410. ' Borrowman v. Drayton (1876), 2 Ex. D. 15, C. A. ' Cross V. Eglin (1831), 2 B. & Ad. 106. " GwilUm V. Daniell (1835), 2 0. M. & R. 61 ; cf. Morris v. Levison (1876), 1 0. P. D., at p. 159. ' Deeming v. Snaith (1851), 16 Q. B. 275. 8 Cmas V. Bingham (1853), 2 E. & B. 836. " Moore v. Campbell (1854), 10 Exoh. 323. " Cockerell v. Aucompte (1857), 26 L. J. C. P. 194; cf. Bourne \. Seymour (1855), 24 L. J. 0. P. 207. » McOonnell v. Murphy (1873), L. R. 5 P. 0. 203. " Beuter v. Sola (1879), 4 C. P. D. 239, C. A. " McLay v. Ferry (1881), 44 L. T. 152. » Tancred v. Sted Co. of Baotland (1890), 15 App. Cas. 125, H. L. " Shepherd v. Kain (1821), 5 B. & Aid. 240 (ship) ; Taylor v. Bulhn (1850), 5 Exoh. 779 (ship); Ward v. Eobhs (1878), 4 App. Cas. 13 (diseased pigs). " Andrews v. Belfield (1857), 2 O. B. n.s. 779. NOTES. 179 " Soott and Co.'s mess pork." i Stipula- ■ " Tour wool at 16s. a stone." ^ tioiia " Prime singed bacon." ^ judicially "Ware potatoes."* '=™'*™*- " 50 tons best palm oil ; wet and inferior oil, if any, at a fair allowance." ^ "Seed barley." 6 " 413 bales of wool guaranteed about similar to samples in selling broker's possession." ' " The cotton guaranteed equal to sample ; should the quality prove inferior to guarantee, a fair allowance to be made." ' "Horses not answering the description must be returned before 6 o'clock on Wednesday." " " Horses warranted good workers, not answering such warranty, to be returned before 5 o'clock of the day after the sale, and shall then be tried by a person to be appointed by the auctioneer." ^° " Warranted sound." ^^ " I believe the mare to be sound, but I will not warrant her." '^ " Received £10 for a grey d-year-old colt, warranted sound." i' " Pour pictures, views in Venice. Canaletti." " " PoweU v. Horton (1836), 2 Bing. N. C. 668 ; ef. Johnson v. Baylton (1881), 7 Q. B. D. 438, C. A. 2 Macdonald v. Longbottom (1860), 29 L. J. Q. B. 256, Ex. Ch. ; c/. MeCollin v. Gilpin (1881), 6 Q. B. D. 516, C. A. = Yates V. Pym (1816), 6 Taunt. 446. * Smith V. Jeffryes (1846), 15 M. & W. 561. = Lucas V. Bnstow (1858), 27 L. J. Q. B. 364. « Carter v. Criek (1859), 28 L. J. Ex. 238. ' Heyworth v. Hutchinson (1867), L. E. 2 Q. B. 447. ' Az€mar v. Casella (1867), L. E. 2 0. P. 677, Ex. Ch. » Bead v. TattersaTl (1871), L. E. 7 Ex. 7; cf. Chapman v. Withers (1888), 20 Q. B. D. 824. •» HinchcUffe v. Barwick (1880), 5 Ex. D. 177, C. A. " Kiddell v. Burnard (1842), 9 M. & W. 668 ; Holyday v. Morgan (1858), 28 L. J. Q. B. 9. For list of defects constituting unsoundness, see Benjamin on Sale, 4th ed., p. 616. " Wood V. Smith (1829), 5 M. & E. 124. " Budd V. Fairmaner (1831), 8 Bing. 48 ; Anthony v. Halstead (1877), 37 L. T. N.s. 433. " Power V. Barham (1886), 4 A. & B. 473. N 2 180 APPENDIX II. Note C. — ^Delivery to Cakeiek. Delivery Frequent reference has been made to the rule that delivery of goods to carrier, to a carrier is prima facie a delivery to the buyer, a performance of the seller's contract which passes both the property and the risk to the buyer. It follows that as a rule if the goods are lost or destroyed, the buyer or consignee is the proper person to sue the carrier. The most authoritative statement of the principle is in the judgment of the House of Lords in Dunlop v. La/nibert, where it was held that if there was a special contract the consignor might sue the carrier though the goods might be the property of the consignee. Lord Cottenham there says : " It is no doubt true as a general rule that the delivery by the consignor to the carrier is a delivery to the consignee, and that the risk is after such delivery the risk of the consignee. This is so if, without designating the particular carrier, the consignee directs that the goods shall be sent by the ordinary conveyance : the delivery to the ordinary carrier is then a delivery to the consignee, and the con- signee incurs all the risk of the carriage. And it is still more strongly so if the goods are sent by a carrier specially pointed out by the consignee himself, for such carrier then becomes his special agent. " But, though the authorities all establish the general inference I have stated, yet that general inference is capable of being varied by the circumstances of any special arrangement between the parties, or of any particular mode of dealing between them. If a particular contract be proved between the consignor and the consignee, and the circum- stance of the payment of the freight and insurance is not alone a conclusive evidence of ownership — as where the party undertaking to consign undertakes to deliver at a particular place — the property, till it reaches that place and is delivered according to the terms of the contract, is at the risk of the consignor. And again, though in general the following the directions of the consignee, and delivering the goods to a particular carrier, will relieve the consignor from the risk, he may make such a special contract that, though delivering the goods to the carrier specially intimated by the consignee, the risk may remain with him ; and the consignor may, by a contract with the carrier, make the carrier liable to himself. In an infinite variety of circumstances, the ordinary rule may turn out not to be that which regulates the liabilities of the parties." ^ This passage is discussed by Blackburn, J., in an instructive judg- ment in The Calcutta Co. v. De Mattos, which has often been referred to in the text but which was too long for insertion there. He says : ' Burilop V. LambeH (1839), 6 01. & Fin. 600, at pp. 620, 621. property. NOTES. 181 " "What was the effect of the contract as regards the property in the Delivery goods and the right to the price, from the time of the handing over *» carrier the shipping documents and paying half of the invoice value? '°f„*^^^^. There is no rule of law to prevent the parties, in cases like the present, from making whatever hargain they please. If they use words in the contract shewing that they intend that the goods shall be shipped by the person who is to supply them, on the terms that when shipped they shall be the consignee's property, and at his risk, so that the vendor shall be paid for them whether delivered at the port of destination or not, this intention is effectual. Such is the common case where goods are ordered to be sent by a carrier to a port of desti- nation. The vendor's duty is, in such cases, at an end when he has delivered the goods to the carrier, and, if the goods perish in the carrier's hands, the vendor is discharged and the purchaser is bound to pay him the price. If the parties intend that the vendor shall not merely deliver the goods to the carrier, but also undertake that they shall actually be delivered at their destination, and express such intention, this also is effectual ; in such a case, if the goods perish in the hands of the carrier, the vendor is not only not entitled to the price, but he is liable for whatever damage may have been sustained by the purchaser in consequence of the breach of the vendor's contract to deliver at the place of destination. But the parties may intend an intermediate state of things ; they may intend that the vendor shall deliver the goods to the carrier, and that, when he has done so, he shall have fulfilled his undertaking, so that he shall not be liable in damages for a breach of contract if the goods do not reach their destination ; and yet they may intend that the whole or part of the price shall not be payable unless the goods do arrive. They may bargain that the property shall vest in the purchaser, as owner, as soon as the goods are shipped, that they shall then be both sold and delivered, and yet that the price (in whole or in part) shall be payable only on the contingency of the goods arriving, just as they might, if they pleased, contract that the price should not be payable unless a particular tree fall ; but without any contract on the vendor's part in the one case to procure the goods to arrive, or in the other to cause the tree to fall. Where the contract is of this kind, the position of the vendor and purchaser, in case the goods do not arrive, is analogous to that of freighter and shipowner, in the ordinary contract of carriage on board a ship, in case the goods are prevented from arriving by one of the excepted perils. The shipowner is not bound to carry and deliver at all events ; but, though he is excused if prevented by the excepted perils, yet no freight is earned or payable unless the goods are deli- 182 APPENDIX II. Delivery to carrier to pass property. vered. In the case of freight, also, the question often arises, whether a payment made at the port of shipment is an advance of part of the freight, returnable if the goods are not delivered and freight earned, or is an absolute payment, leaving only the balance contingent on the safe delivery of the goods — a question very analogous to the one that arises on the present contract." i > Ccdctdta Co. v. Be Mattos (1863), 32 L. J. Q. B. 322, at p. 328. See the cases as to pre-payment of freight ooUeoted in M'Laohlan on Shipping, p. 443. INDEX. "ABOUT," as affecting quantity of goods, 63, 178 ACCEPTANCE, under Statute of Frauds, 13, 14, 144 in performance of contract, 67 when wrong quantity delivered, 62 after breach of condition, 23 after breach of warranty, 98 See also Action ; Btjteb. ACCESSOEIBS, 48 ACT. See Sale of Goods Act ; Statutes. ACTION, defined, 109 provisions of Act enforceable by, 105 breach of warranty of title, 26, 98 delay in taking delivery, 69 to recover stolen goods when thief convicted, 53, 54 to enforce stoppage in transitu, 84, 85 to recover price, 90 for non-acceptance, 92 for non-deliveiy, 93 for delayed delivery, 96 to enforce specific performance, 97 for conversion or detinue, 96 breach of warranty of quality, 98 for damages on loss by re-sale, 88, 89 effect of judgment in conversion or detinue, 8 for not giving bill for price, 91 by assignee of bill of lading, 149, 150 quanti minoris in Scotland, 24, 100, 107 ACTUAL RECEIPT, 12, 144 184 INDEX. APTEE-ACQUIEBD PROPERTY, transfer of, 15, 16, 41, 43 AGENCY, application of general law, 9, 11, 108 agents to sign under Statute of Frauds, 146 " Mercantile agent " defined, 119 of wife, 11 AGREEMENT TO SELL, defined, 2 distinguished from sale, 6 concerning future goods, 18 is within Statute of Frauds, 12, 13 when converted into a sale, 2, 7, 143 See CoNTEACT OF Sale; Sale. "ALL FAULTS," sale with, 178 ANTECEDENT DEBT, transfer of hill of lading for, 86 pledge of document of title for, 125 APPARENT OWNERSHIP, does not give title to sell, 48, 49 APPARENT POSSESSION, 156 APPROPRIATION, of goods to contract, 40, 43 APPROVAL, sale on, 39, 40, 42 ARRIVAL, sale of goods " to arrive," 174, 175 ASSENT, to appropriation of goods to contract, 40, 43 of seller to suh-sale, 85 induced hy fraud, 8, 12, 52 when presumed from delay, 68 ASSIGNMENT, of future goods, 15, 16, 41, 43 of document of title, 131 INDEX. 185 ATTACHMENT IN SCOTLAND, 73 ATTORNMENT, delivery effected by, 59, 110 of carrier, to end stoppage in transitu, 82 AUCTION, rules as to sales by, 105 auctioneer agent to sign, 146 sale of land by, 153 BAILEE, includes custodier in Scotland, 109 delivery by attornment of, 110 buyer or seller as bailee for the other, 46, 48 seller's lien, when he holds for buyer, 74 See Carrier. BAILMENT, distinguished from sale, S BANKEUPTCT. See Insolvency. saving for laws of, 108 BAEGAIN, sale of, distinguished from sale of goods, 15 BAEGAIN AND SALE, distinguished from sale and delivery, 7, 91 BAETEE, distinguished from sale, 4 BILL OP EXCHANGE, as conditional payment, 70 bill of lading to be exchanged for, 44, 45 refusal to give for price, 91 BILL OF LADING, general note on, 150 distinguished from other documents of title, 61 effect of transfer on stoppage in transitu, 86 the Act of 1855, 149 reservation otjus disponendi by, 44 BILL OP SALE, defined, 155 186 INDEX. BILL OP SALE— ship or share in ship must be transferred by, 11 n., 155 mercantile documents of title do not constitute, 122, 155 saving for law as to, 108 BREACH OP GONTEAGT. £fee Action; Damages. BROKER, agent to sign, 147 bought and sold notes by, 147 entry of contract in book by, 147 is within Pactors Act, 120 BUYER, what the term includes, 109 duty to accept and pay, 57, 58 when bound to fetch goods away, 59 carrier is agent of, to receive, 65, 180 right of examination on delivery, 66, 67 what is an acceptance by, 67 mode of rejecting goods, 69 neglecting to take delivery after notice, 69 actions against, 90 actions by, 93. And see Actiok. effect of sub-sale by, 85, 86 obtaining goods or documents before sale, 54, 129 may be bailee for seller, 46, 110 when risk passes to, 46 risk of, if delivery at distant place, 66 CAPACITY, to buy and sell, 9, 10 distinguished from authority, 9 CARGO, sale of, 178 CARRIER, agent to receive, but not to accept, 65 delivery to, to pass property and risk, 40, 43, 64 reservation oijus disponendi on delivery to, 44 delivery to, as performance of seller's contract, 64 necessary risks of transit through, 66 delivery to, ends seller's lien, 76, 77 INDEX. 187 CARRIER— «mEX. SPECIFIC PERPOBMANCE, 97 STAMP DUTY, biUsoflading, 157, 160 delivery orders, 158, 160 warrants for goods, 159, 161 receipts for money, 159, 160 exemption of contracts of sale, 160 STATUTE OP FRAUDS, 13, 56, 142. See Frauds. STATUTES CITED, 2 & 3 Phil, and Mar. c. 7 (Sale of Horses), 51, 137 31 Eliz. c. 12 (Sale of Horses), 51, 139 29 Car. 2, c. 3 (Statute of Frauds), 13, 56, 142 4 Geo. 4, 0. 83 (Factors), 119, 134 6 Geo. 4, c. 54 (Factors), 119, 134 9 Geo. 4, 0. 14 (Lord Tenterden's Act), 13, 148 3 & 4 Will. 4, c. 42 (Recovery of Interest), 91 5 & 6 Vict. c. 39 (Factors), 119, 134 17 & 18 Vict. c. 104 (Merchant Shipping), 11 17 & 18 Vict. c. 125 (Common Law Procedure), 98 18 & 19 Vict. c. Ill (Bills of Lading), 149 19 & 20 Vict. 0. 60 (Mercantile Law Amendment, Scotland), 32, 38, 74, 117 19 & 20 Vict. c. 97 (Mercantile Law Amendment, England), 56, 97, 117 24 & 25 Vict. c. 96 (Recovery of Stolen, &c., Goods), 53, 152 30 & 31 Vict. c. 48 (Sale of Land by Auction), 106, 153 37 & 38 Vict. c. 51 (Chain Cables and Anchors), 28 37 & 38 Vict. c. 62 (Infants Relief), 10 38 & 39 Vict. c. 63 (Sale of Food and Drugs), 28 40 & 41 Vict. c. 39 (Factors), 119, 134 41 & 42 Vict. c. 31 (Bills of Sale), 155 44 & 45 Vict. c. 41 (Conveyancing), 26 45 & 46 Vict. c. 75 (Married Women), 10 50 & 51 Vict. c. 28 (Merchandise Marks), 157 52 & 53 Vict. c. 97 (Factors), 118 53 & 54 Vict. c. 40 (Factors, Scotland), 135 53 & 54 Vict. c. 53 (Bill of Sale), 122 54 & 55 Vict. c. 35 (Bill of Sale), 122 54 & 55 Vict. c. 39 (Stamps), 157 56 & 57 Vict. c. 63 (Married Women), 10 INDEX. 209 STOLEN GOODS, 51, 53 STOPPAGE IN TRANSITU, origin of right, 71 nature of transit, 78 duration of transit, 81 how stoppage effected, 84 stoppage where contract is executory, 71 «UB-SALE, effect of, by buyer, 54, 55, 85 SUSPENSIVE CONDITION, 6, 42, 164 TENDER, of delivery, 58, 60 of price, 91 TERMS AND STIPULATIONS, list of, judicially construed, 175 TIME, construction of stipulations as to, 20 reasonable, a question of fact, 104 list of stipulations judicially construed, 175, 176 TITLE, implied undertakings as to, 25 transfer of, by sale, 48. See Tbansfek. See also Document of Title. TRADE MARK, implied warranty as to, 28, n., 157 TRANSFER, of document of title, 131. See Document op Title. of bill of lading, 86, 150 (a) of property as between seller and buyer — goods must be ascertained, 36 property passes when intended to pass, 37 conditional sale of specific goods, 5, 6, 39 unconditional sale of specific deliverable goods, 38 goods not in deliverable state, 39 210 iJ^PiEX. TRANSFER— cowimtteei. when price to be ascertained by seller's act, 39 goods on approval or sale or return, 39, 40 appropriation of goods to contract, 40 delivery to carrier, 40, 64. See also Delivery. article specially made for buyer, 41, 43 assignment of future goods, 16, 43 reservation of right of disposal, 44 risk usually passes with property, 46 (h) of title- sale by person not the owner generally ineffectual, 48 provisions of Factors Act, 54, 118. See Factobs Act. special common law or statutory powers, 49 market overt, 51 sale under voidable title, 52 revesting of stolen goods on conviction, 53 seller or buyer remaining in possession, 54 effect of writs of execution, 55 common law powers of mercantile agent, 132 TRANSIT, what constitutes, 79, 80. See Stoppage in tbansitu. TROVER, 8, 96. See Convbesion. TRUSTEE (IN BANKRUPTCY), may affirm contract, 75 may disclaim contract, 108 UNASCERTAINED GOODS, property passes by appropriation, 36, 40 UNPAID SELLER, who deemed to be, 70 remedies of, against the goods, 71 See Seller's Lien ; Stoppage in tkansitit. USAGE OF TRADE, to explain or annex incidents, 12, 104, 175 to import warranty or condition, 29 contrasted with rules of law, 118 INDEX. 211 VALUATION, agreement to sell goods at, 20 VALUE, of £10 and upwards under Statute of Frauds, 12, 143 what constitutes, under Factors Act, 126 as measure of damages, 92, 93-97 VARIATION OF CONTRACT, 147 VENDOR'S LIEN. See Sellbb's Lien. WAGER, when sale void as, 19 WAIVER, of condition precedent, 23, 25 of right of inspection, 31 of seller's lien, 77 of right of stoppage in transitu, 83 of tort, 8 WARRANT FOR GOODS, 159. See Document of Title. WARRANTY, defined, 23, 114 discussion of definition, 168 how implied, may be negatived, 103 how annexed to contract of sale, 22 what affirmations operate as, 22 when condition is to he treated as, 23 implied warranty of title, and freedom from lien, 25 annexed by .usage of trade, 29, 33, 104 of fitness for particular purpose, 29, 31 of merchantable quality and condition, 29, 31 as to goods being of seller's own make, 30, 157 on sale by sample, 33, 34 special warranties by statute, 28, n., 157 remedies for breach ofVarranty, 98, 99 measure of damage for breach, 99, 100 list of warranties, judicially construed, 175 Scotch law as to, 24, 99, 114 payment into Court in Scotland when breach of warranty set up, 107 "212 INDEX. 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